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[ { "docid": "17202268", "title": "", "text": "his logic without difficulty and without post hoc explanation.” Id. 19. The district court therefore concluded that remanding Butler’s case to the agency “would be both inefficient and unreasonable.” Id. 16. Now, more than five years after the ALJ found that Butler was not disabled, her case has made its way to us. TV. Discussion “In a disability proceeding, the ALJ ‘has the power and the duty to investigate fully all matters in issue, and to develop the comprehensive record required for a fair determination of disability.’ ” Simms v. Sullivan, 877 F.2d 1047, 1050 (D.C.Cir.1989) (quoting Diablo v. Sec’y of HEW, 627 F.2d 278, 281 (D.C.Cir.1980)). The Commissioner’s ultimate determination will not be disturbed if it is based on substantial evidence in the record and correctly applies the relevant legal standards. 42 U.S.C. §§ 405(g), 1383(c)(3); Craig v. Chater, 76 F.3d 585, 589 (4th Cir.1996); Brown v. Bowen, 794 F.2d 703, 705 (D.C.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, 1427-27, 28 L.Ed.2d 842 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216-17, 83 L.Ed. 126 (1938)). The test “requires more than a scintilla, but can be satisfied by something less than a preponderance of the evidence.” Fla. Mun. Power Agency v. FERC, 315 F.3d 362, 365-66 (D.C.Cir.) (internal quotation omitted), cert. denied, — U.S. -, 124 S.Ct. 386, 157 L.Ed.2d 276 (2003). Although we must carefully scrutinize the entire record, Brown, 794 F.2d at 705, we are not to determine ourselves whether Butler is disabled; we assess only whether the ALJ’s finding that she is not is based on substantial evidence and a correct application of the law. We conclude that the ALJ’s decision fails this review. Butler raises four challenges to the ALJ’s decision. She claims that the ALJ failed to properly (1) account for her physical limitations in his RFC assessment; (2) weigh the opinions of her treating physician, Dr. Lightfoote; and (3) assess her allegations of" } ]

[ { "docid": "7034213", "title": "", "text": "MEMORANDUM AND ORDER CROW, Senior District Judge. This is an action to review the final decision of the defendant Commissioner of Social Security (“Commissioner”) denying the claimant Bryan K. Kent’s applications for disability insurance benefits under Title II of the Social Security Act (“Act”) and for supplemental security income (“SSI”) under Title XVI of the Act. The case is ripe for decision on the parties’ briefs filed pursuant to D.Kan. Rule 83.7. PROCEDURAL HISTORY The claimant applied for disability benefits under Title II on March 1, 1993, asserting he had been disabled as of February 2, 1992. He also applied on May 25, 1994, for SSI, asserting the same disability date. His claims were combined and denied initially and on reconsideration. At the claimant’s request, a hearing before an administrative law judge (“ALJ”) was held on January 8, 1996, and he appeared in person and with counsel. (Tr. 39-95). Witnesses at the hearing included the claimant and a vocational expert. The ALJ issued her decision on June 27, 1996, finding that the claimant was not disabled as defined under the Social Security Act. The appeals council denied the claimant’s request for review after also considering a letter from the claimant’s attorney and a psychological evaluation report dated August 22, 1996. Thus, the ALJ’s decision stands as the Commissioner’s final decision. O’Dell v. Shalala, 44 F.3d 855, 858 (10th Cir.1994) (citing See 20 C.F.R. § 404.981). STANDARD OF REVIEW The court’s standard of review is set forth in 42 U.S.C. § 405(g), which provides that the Commissioner’s finding “as to any fact, if supported by substantial evidence, shall be conclusive.” Substantial evidence is more than a scintilla and is that evidence which a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401-02, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Ray v. Bowen, 865 F.2d 222, 224 (10th Cir.1989). “A finding of ‘no substantial evidence’ will be found only where there is a ‘conspicuous absence of credible choices’ or ‘no contrary medical evidence.’ ” Trimiar v. Sullivan, 966 F.2d 1326, 1328 (10th Cir.1992) (quoting" }, { "docid": "10331709", "title": "", "text": "MEMORANDUM OPINION LAMBERTH, District Judge. This matter, brought under the Social Security Act, 42 U.S.C. § 405(g), is before the Court on defendant’s motion for summary affirmance of the Commissioner’s denial of benefits and plaintiffs motion for reversal. Upon consideration of the parties’ submissions, the administrative record, and the entire record herein, defendant’s motion will be denied and plaintiffs motion will be granted. I. Plaintiff applied for Supplemental Social Security Income (“SSI”) on January 3, 1994 for aggravation of back and joint injury initially sustained in June 1986. Plaintiffs application was denied initially and following a hearing before an Administrative Law Judge (“ALJ”). The administrative Appeals Council granted review and remanded the case to the ALJ in April 1997 for the taking of additional evidence concerning plaintiffs mental impairments and, if necessary, another vocational assessment considering the mental impairments. The ALJ conducted a second hearing in October 1997 and issued a written decision on November 20, 1997. The ALJ’s decision became final on April 21, 1999, when the Appeals Council denied plaintiffs request for review. Plaintiff timely filed this action. II. This Court must affirm the Commissioner’s decision regarding a claimant’s disability if, on the basis of the entire record, it is supported by substantial evidence. 42 U.S.C. § 405(g); see Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Simms v. Harris, 662 F.2d 774, 777 (D.C.Cir.1980). 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.” Richardson, 402 U.S. at 401, 91 S.Ct. 1420 (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)); Brown v. Bowen, 794 F.2d 703, 705 (D.C.Cir.1986). To determine whether the Commissioner’s decision is supported by substantial evidence, the Court must “carefully scrutinize the entire record.” Davis v. Heckler, 566 F.Supp. 1193, 1195 (D.D.C.1983). The Court may not reweigh the evidence and “replace the [Commissioner’s] judgment regarding the weight and validity of the evidence with its own.” Davis, 566 F.Supp. at 1195. “[Bjecause the broad purposes" }, { "docid": "19717131", "title": "", "text": "Administration (“SSA”), claiming that he had cervical, left shoulder, and lumbar sprains from his February 2008 fall and was unable to work. Id. at 89-90,126. The application was denied. Id. at 35, 50-57. Plaintiff requested a hearing, which was held before Administrative Law Judge (“ALJ”) Andrew S. Weiss on May 13, 2010. Id. at 13-34. Two weeks later, the ALJ found Plaintiff was not disabled and denied him benefits. Id. at 36-45. Plaintiff sought review of the ALJ’s decision by the Social Security Administration’s (“SSA”) Appeals Council. Id. at 11-12. On May 19, 2011, the Appeals Council denied Plaintiffs request for review, rendering ALJ Weiss’ decision the final decision of the Commissioner. Id. at 1-6. Plaintiff then petitioned this Court for review. STANDARD OF REVIEW When a claimant challenges the SSA’s denial of disability benefits, the Court’s function is not to evaluate de novo whether the claimant is disabled, but rather to determine only “whether the correct legal standards were applied and whether substantial evidence supports the decision.” Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir.2004); see also Moran v. Astrue, 569 F.3d 108, 112 (2d Cir.2009); 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive----”). Substantial evidence is “more than a mere scintilla”; it 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) (quoting Consol. Edison Co. of N.Y., Inc. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)); Moran, 569 F.3d at 112 (quoting Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir.2008)). The substantial-evidence test applies not only to the Commissioner’s factual findings, but also to inferences and conclusions of law to be drawn from those facts. See, e.g., Carballo ex rel. Cortes v. Apfel, 34 F.Supp.2d 208, 214 (S.D.N.Y.1999) (Sweet, J.). In determining whether the record contains substantial evidence to support a denial of benefits, the reviewing court must examine the entire record, weighing the" }, { "docid": "23138986", "title": "", "text": "had not experienced difficulty working prior to her onset of her physical ailments, and “ha[d] cared for her children and kept custody of them.” CAR at 54. The ALJ also emphasized that Talavera had been examined numerous times by medical professionals, none of whom indicated that she suffered from more than minor impairments in daily functioning. See id. By Order dated May 30, 2006, the SSA Appeals Council declined to review the ALJ’s September 20, 2005 Order, thereby making the ALJ’s Order the “final decision” of the Commissioner under 42 U.S.C. § 405(g). Talavera appealed the ALJ’s decision to the district court, arguing primarily that the ALJ erred in concluding that she did not suffer from mild mental retardation. The district court affirmed the ALJ’s denial of benefits, holding that the ALJ’s finding that Talavera was not intellectually disabled was supported by substantial evidence because “there was no evidence in the record demonstrating that the onset of Talavera’s deficits in adaptive functioning occurred before she reached the age of 22.” Talavera, 2011 WL 3472801, at *11. Further, the district court rejected “Talavera’s contention that her failure to graduate from high school and her marginal employment history together establish such an onset.” Id. Talavera appealed the district court’s judgment to this Court. DISCUSSION I. Standard of Review “In reviewing a final decision of the SSA, this Court is limited to determining whether the SSA’s conclusions were supported by substantial evidence in the record and were based on a correct legal standard.” Lamay v. Comm’r of Soc. Sec., 562 F.3d 503, 507 (2d Cir.2009); see also 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.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (internal quotation marks omitted). In determining whether the agency’s findings are supported by substantial evidence, “the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.” Mongeur v. Heckler, 722 F.2d 1033," }, { "docid": "20463733", "title": "", "text": "to SSI payments. In reaching this conclusion, the ALJ evaluated the medical evidence in light of McNamara’s subjective allegations of pain, see Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.1984), and determined that McNamara’s testimony regarding her symptoms and limitations was not fully credible and not supported by the record. The ALJ found that McNamara’s allegations at the hearing were contradicted by the conclusions of Dr. Adelman and Dr. Wy and her own Function Report. The Appeals Council denied review of the ALJ’s decision on November 27, 2007, resulting in a final decision of the Commissioner. Van Vickle v. Astrue, 539 F.3d 825, 828 (8th Cir.2008). McNamara sought review by the district court. The court ruled that the ALJ permissibly concluded that McNamara’s physical limitations did not rise to the degree of severity required by the regulations for a finding of disability, because her ailments did not impose a significant work-related limitation of function. II. We review de novo a district court’s decision affirming the denial of social security benefits. Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir.2005). We will affirm if the Commissioner’s decision is “supported by the substantial evidence on the record as a whole.” Id. (internal quotation omitted); see 42 U.S.C. §§ 405(g), 1383(c)(3). 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) (internal quotation omitted). “We consider both evidence that detracts from and evidence that supports the Commissioner’s decision.” England v. Astrue, 490 F.3d 1017, 1019 (8th Cir.2007) (internal quotation omitted). If substantial evidence supports the decision, then we may not reverse, even if inconsistent conclusions may be drawn from the evidence, and even if we may have reached a different outcome. England, 490 F.3d at 1019. McNamara challenges the ALJ’s finding at step three of the five-step process for determining disability. She contends that the ALJ applied incorrect legal standards and ignored substantial evidence in the record in determining that her physical and mental impairments did not meet the required" }, { "docid": "16617623", "title": "", "text": "applied for work.” Id. at § 423(d)(2)(A). In making this determination, the ALJ is to consider (1) medical data and findings, (2) expert medical opinions, (3) subjective complaints, and (4) the plaintiffs age, edu cation, and work history; however, “[t]he expert opinions of a treating physician are binding on the fact finder unless contradicted by substantial evidence to the contrary.” Davis v. Heckler, 566 F.Supp. 1193, 1196 (D.D.C.1983) (citing cases). A court will not disturb the determination of the Commissioner if it is based on substantial evidence in the record and the correct application of the relevant legal standards. 42 U.S.C. §§ 405(g), 1383(c); Butler, 353 F.3d at 999. 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 omitted). “The test ‘requires more than a scintilla, but can be satisfied by something less than a preponderance of the evidence.’ ” Butler, 353 F.3d at 999 (quoting Fla. Mun. Power Agency v. FERC, 315 F.3d 362, 365-66 (D.C.Cir.2003)). In reviewing an administrative decision, a court may not determine the weight of the evidence nor substitute its judgment for that of the Commissioner if his decision is based on substantial evidence. Butler, 353 F.3d at 999; Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.1990). Instead, the reviewing court must carefully scrutinize the entire record to determine whether the Commissioner, acting through the ALJ, has analyzed all the evidence and has sufficiently explained the weight he has given to obviously probative material. “Because the broad purposes of the Social Security Act require a liberal construction in favor of disability, the court must view the evidence in the light most favorable to the claimant.” Martin v. Apfel, 118 F.Supp.2d 9, 13 (D.D.C.2000) (citing Davis v. Shalala, 862 F.Supp. 1, 4 (D.D.C.1994)). The reviewing court must also determine whether credible evidence was properly considered. Id. (citing Dionne v. Heckler, 585 F.Supp. 1055 (D.Me.1984)). Importantly, an ALJ cannot merely disregard evidence which does not support his conclusion. Dionne, 585 F.Supp. at" }, { "docid": "8788018", "title": "", "text": "MEMORANDUM-DECISION AND ORDER HURD, District Judge. This matter is brought pursuant to §§ 205(g) & 1631(b)(3) of the Social Security Act, as amended, 42 U.S.C. §§ 405(g) & 1383(c)(3), to review a final determination of the Commissioner of Social Security denying the plaintiffs claim for Social Security Disability benefits. The parties have filed their briefs, including the Administrative Record on Appeal, and the matter has been submitted for decision without oral argument. I. PROCEDURAL HISTORY Plaintiff applied for Social Security Disability Insurance benefits on February 5, 1996, alleging that he has been disabled since January 26, 1995 due to bilateral carpal tunnel syndrome (“CTS”), back, neck, and arm problems, a right lung impairment, and depression. His application was denied initially and on reconsideration. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), which was held on January 21, 1998. The ALJ issued an unfavorable decision on April 13, 1998. The Appeals Council denied review on January 20, 1999, making the ALJ’s decision the final decision of the Commissioner. Plaintiff then commenced the instant action on March 11,1999. II. FACTS The facts stated in plaintiffs brief are adopted with any exceptions as noted. III. CONTENTIONS Plaintiff contends that the ALJ’s decision should be reversed and/or remanded because the ALJ: 1. Erred in determining plaintiffs educational level; 2. Improperly rejected plaintiffs subjective complaints of pain; 3. Erred in his assessment of plaintiffs psychological impairment; and 4. Failed to consider the combined effects of plaintiffs impairments. IV. DISCUSSION A. Standard of Review A court’s review of the Secretary’s final decision is limited to determining whether there is substantial evidence in the record to support such decision. Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir.1991). Substantial evidence is “such relevant evidence as a reasonable person 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)). It must be “more than a mere scintilla” of evidence scattered throughout the administrative record. Richardson, 402 U.S. at 401, 91 S.Ct. 1420. “To determine on appeal whether an ALJ’s findings are supported" }, { "docid": "7034214", "title": "", "text": "disabled as defined under the Social Security Act. The appeals council denied the claimant’s request for review after also considering a letter from the claimant’s attorney and a psychological evaluation report dated August 22, 1996. Thus, the ALJ’s decision stands as the Commissioner’s final decision. O’Dell v. Shalala, 44 F.3d 855, 858 (10th Cir.1994) (citing See 20 C.F.R. § 404.981). STANDARD OF REVIEW The court’s standard of review is set forth in 42 U.S.C. § 405(g), which provides that the Commissioner’s finding “as to any fact, if supported by substantial evidence, shall be conclusive.” Substantial evidence is more than a scintilla and is that evidence which a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401-02, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Ray v. Bowen, 865 F.2d 222, 224 (10th Cir.1989). “A finding of ‘no substantial evidence’ will be found only where there is a ‘conspicuous absence of credible choices’ or ‘no contrary medical evidence.’ ” Trimiar v. Sullivan, 966 F.2d 1326, 1328 (10th Cir.1992) (quoting Hames v. Heckler, 707 F.2d 162, 164 (5th Cir.1983)) (quoting Hemphill v. Weinberger, 483 F.2d 1137 (5th Cir.1973)). “Evidence is insubstantial if it is overwhelmingly contradicted by other evidence.” O’Dell v. Shalala, 44 F.3d at 858 (citation omitted). The court’s review also extends to determining whether the Commissioner applied the correct legal standards. Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994). Besides the lack of substantial evidence, reversal may be appropriate when the Commissioner uses the wrong legal standards or the Commissioner fails to demonstrate reliance on the correct legal standards. Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir.1994). The court’s duty to assess whether substantial evidence exists: “is not merely a quantitative exercise. Evidence is not substantial ‘if it is overwhelmed by other evidence — particularly certain types of evidence (e.g., that offered by treating physicians) — or if it really constitutes not evidence but mere conclusion.’ ” Gossett v. Bowen, 862 F.2d 802, 805 (10th Cir.1988) (quoting Fulton v. Heckler, 760 F.2d 1052, 1055 (10th Cir.1985)). The court “must examine" }, { "docid": "8246515", "title": "", "text": "well as above moderate limitations on completing a normal workday or workweek without an unreasonable length and number of rest periods. (AR at 275.) In every case except the last, the VE identified light and/or sedentary work that the hypothetical claimant would be able to perform. Based on the VE’s testimony, the ALJ found that plaintiff had the RFC to perform “a significant range of light and alternatively sedentary work.” (AR at 24.) ANALYSIS I. Standard of Review A. Scope of Review A district court’s review of the SSA’s findings of fact is limited to determining whether those findings are supported by substantial evidence. Brown v. Barnhart, 408 F.Supp.2d 28 (D.D.C.2006). 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 omitted). The standard “requires more than a scintilla, but can be satisfied by something less than a preponderance of the evidence.” Fla. Mun. Power Agency v. FERC, 315 F.3d 362, 365-66 (D.C.Cir. 2003) (quoting FPL Energy Me. Hydro LLC v. FERC, 287 F.3d 1151, 1160 (D.C.Cir.2002)). In making its determination, a court must carefully scrutinize the record to ensure that the ALJ “has analyzed all the evidence and has sufficiently explained the weight ... given to obviously probative exhibits.” Davis v. Shalala, 862 F.Supp. 1, 4 (D.D.C.1994) (quoting Simms v. Sullivan, 877 F.2d 1047, 1050 (D.C.Cir.1989)). Nevertheless, a court “may not reweigh the evidence ..., nor may it replace the [agency’s] judgment concerning the weight and validity of the evidence with its own.” Davis v. Heckler, 566 F.Supp. 1193, 1195 (D.D.C.1983). B. Legal Framework for Determining Disability To qualify for disability insurance and supplemental security income benefits, an individual must establish that he is “disabled.” 42 U.S.C. §§ 423(a)(1)(E), 1382(a)(1). An individual is disabled un der the statute if he is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to" }, { "docid": "22783725", "title": "", "text": "a discussion of the evidence, and stating the Commissioner’s determination and the reason or reasons upon which it is based. 42 U.S.C. 405(b)(1). Under this statute, the ALJ was required to discuss the evidence and explain why he found that appellant was not disabled at step three. Cook v. Heckler, 783 F.2d 1168, 1172-73 (4th Cir.1986); see also Brown v. Bowen, 794 F.2d 703, 708 (D.C.Cir.1986) (relying upon 20 C.F.R. 404.953 and 5 U.S.C. 557(c)[ (3)(A) ] to hold that an ALJ must explain his adverse decisions). This statutory requirement fits hand in glove with our standard of review. By congressional design, as well as by administrative due process standards, this court should not properly engage in the task of weighing evidence in cases before the Social Security Administration. 42 U.S.C. 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive.”); Cagle v. Califano, 638 F.2d 219, 220 (10th Cir.1981) (holding court does not weigh the evidence or substitute its judgment for that of the Secretary); see also Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 619-20, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966) (discussing similar “substantial evidence” standard under the Administrative Procedure Act, now codified at 5 U.S.C. 706(2)(E)). Rather, we review the Secretary’s decision only to determine whether her factual findings are supported by substantial evidence and whether she applied the correct legal standards. 42 U.S.C. 405(g); see also Byron v. Heckler, 742 F.2d 1232, 1234-35 (10th Cir.1984). 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, 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)). In the absence of ALJ findings supported by specific weighing of the evidence, we cannot assess whether relevant evidence adequately supports the ALJ’s conclusion that appellant’s impairments did not meet or equal any Listed Impairment, and whether he applied the correct legal standards to arrive at" }, { "docid": "23696831", "title": "", "text": "ALJ reasonably found Mr. Smith capable of performing a significant number of jobs in the national economy at the medium exertional level and therefore not disabled within the meaning of the Social Security Act. Mr. Smith contends that the ALJ made flawed credibility determinations and improperly credited the opinion of a consulting physician over that of his treating physician. The majority agrees with Mr. Smith and therefore reverses the decision to deny him benefits. Because I believe that the ALJ’s decision is supported by substantial evidence, I respectfully dissent. I In my view, the majority opinion fails to give sufficient deference to the findings of the ALJ. It is axiomatic that we will affirm the ALJ’s decision as long as it is supported by substantial evidence. See Herron v. Shalala, 19 F.3d 329, 333 (7th Cir.1994); Jones v. Shalala, 10 F.3d 522, 523 (7th Cir.1993); see also 42 U.S.C. § 405(g) (requiring that “[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive”). Therefore, the question before this court is whether the ALJ’s findings were supported by substantial evidence. See Books v. Chafer, 91 F.3d 972, 977 (7th Cir.1996); Diaz v. Chafer, 55 F.3d 300, 306 (7th Cir.1996). Substantial evidence is defined as no more than “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Books, 91 F.3d at 977-78 (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). Given the deferential standard of review, Mr. Smith faces an uphill battle in his attempt to overturn an ALJ’s finding that he is not disabled. See DeFrancesco v. Bowen, 867 F.2d 1040 (7th Cir.1989). “Although we review the entire record, we may not decide the facts anew, reweigh the evidence, or substitute our own judgment for that of the [ALJ].” Herron, 19 F.3d at 333. II Substantial evidence supports the ALJ’s finding that Mr. Smith was not credible in his pain complaints. At the beginning of the discussion, we must recall that the ALJ’s credibility determination is entitled to" }, { "docid": "14644688", "title": "", "text": "qualified her to perform approximately 2,500 security guard jobs and approximately 1,400 hotel clerk jobs in the Tennessee economy. Using this testimony and the appropriate rules found in Appendix 2 of 20 C.F.R. § 404.1569 (Rules 202.10 and 202.17 pertain to Wright’s exertional capacity and her age, education, and work experience) as a framework for deciding Wright’s disability claim, the ALJ concluded that Wright was not under a disability as defined by the applicable regulation issued pursuant to the Social Security Act. 20 C.F.R. § 404.1520(f)(1). On February 19, 1999, the Appeals Council denied Wright’s request for review. The ALJ’s decision thus became the final decision of the Commissioner. On April 10, 2001, upon the magistrate judge’s Report and Recommendation, the district court affirmed the Commissioner’s final decision. II. ANALYSIS A. Standard of review Under 42 U.S.C. § 405(g), the ALJ’s findings are conclusive so long as they are supported by substantial evidence. Our review “is limited to determining whether there is substantial evidence in the record to support the findings.” Duncan v. Secretary of Health & Human Servs., 801 F.2d 847, 851 (6th Cir.1986). “ ‘Substantial evidence’ means ‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Kirk v. Secretary of Health & Human Servs., 667 F.2d 524, 535 (6th Cir.1981) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). Furthermore, we must defer to an agency’s decision “even if there is substantial evidence in the record that would have supported an opposite conclusion, so long as substantial evidence supports the conclusion reached by the ALJ.” Key v. Callahan, 109 F.3d 270, 273 (6th Cir.1997). Our role is not to resolve conflicting evidence in the record or to examine the credibility of the claimant’s testimony. See Gaffney v. Bowen, 825 F.2d 98, 100 (6th Cir.1987) (per curiam). Instead, we focus on whether substantial evidence supports the Commissioner’s decision that found Wright not disabled and therefore ineligible for disability benefits. B. Substantial evidence supports the Commissioner’s decision that Wright is" }, { "docid": "10331710", "title": "", "text": "Plaintiff timely filed this action. II. This Court must affirm the Commissioner’s decision regarding a claimant’s disability if, on the basis of the entire record, it is supported by substantial evidence. 42 U.S.C. § 405(g); see Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Simms v. Harris, 662 F.2d 774, 777 (D.C.Cir.1980). 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.” Richardson, 402 U.S. at 401, 91 S.Ct. 1420 (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)); Brown v. Bowen, 794 F.2d 703, 705 (D.C.Cir.1986). To determine whether the Commissioner’s decision is supported by substantial evidence, the Court must “carefully scrutinize the entire record.” Davis v. Heckler, 566 F.Supp. 1193, 1195 (D.D.C.1983). The Court may not reweigh the evidence and “replace the [Commissioner’s] judgment regarding the weight and validity of the evidence with its own.” Davis, 566 F.Supp. at 1195. “[Bjecause the broad purposes of the Social Security Act require a liberal construction in favor of disability, the Court must view the evidence in the light most favorable to the claimant. This way, the Court can give effect to the remedial purposes of the Social Security Act.” Davis v. Shalala, 862 F.Supp. 1, 4 (D.D.C.1994) (internal citations omitted). III. The Social Security Act defines disability as the 42 U.S.C. § 423(d)(1)(A). The inability to engage in substantial gainful activity includes the inability to perform the claimant’s previous work or other kind of substantial gainful work which exists in the national economy. 42 U.S.C. § 423(d)(2)(A). 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 twelve months. Claims for Social Security disability insurance benefits are evaluated using a fiv.e-step process. A claimant may be found to have no disability at any one of the sequential" }, { "docid": "21689685", "title": "", "text": "section, the court explains the proper scope of a district court’s review of a Social Security Commissioner’s decision regarding a claimant’s disability. The court also describes the appropriate legal standard, and the ALJ’s determinations pursuant to this legal standard. A. Scope of Review If there is “substantial evidence” in the record to support the Commissioner’s decision regarding a claimant’s disability, then the district court must affirm the decision. See Simms v. Harris, 662 F.2d 774, 777 (D.C.Cir.1980). The substantial evidence standard entails a degree of deference to the Commissioner’s decision. See Davis v. Heckler, 566 F.Supp. 1193, 1195 (D.D.C.1983). Substantial evidence is “ ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Brown v. Bowen, 794 F.2d 703, 705 (D.C.Cir.1986) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). Even if supported by substantial evidence, however, the court will not uphold the Commissioner’s findings if the Commissioner reached them by applying an erroneous legal standard. See Marcus v. Califano, 615 F.2d 23, 27 (2d Cir.1979). To determine whether the Commissioner’s decision is free from legal error and supported by substantial evidence, the district court must “ ‘carefully scrutinize the entire record.’ ” Davis, 566 F.Supp. at 1195 (quoting King v. Weinberger, 514 F.2d 423, 425 (8th Cir.1975)). The court may not reweigh the evidence and “replace the [Commissioner]’s judgment regarding the weight and validity of the evidence with its own.” Davis, 566 F.Supp. at 1195. B. Legal Standard The Social Security Act defines a disability as 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 twelve months.” 42 U.S.C. § 423(d)(1)(A); see also Barnhart v. Walton, 535 U.S. 212, 122 S.Ct. 1265, 152 L.Ed.2d 330 (2002) (No. 00-1937). The Act and its implementing regulations lay out a specific five-step process for evaluating a claimant’s disability. See 20 C.F.R. §§ 404.1520, 416.920. First, the claimant must not have engaged in" }, { "docid": "7910402", "title": "", "text": "and good conscience is too narrow. (PL’s Mot. at 11.) The Commissioner moves for summary judgment, arguing that the law and the evidence support the decision of the Commissioner. (Def.’s Mot. at 2.) Analysis On review, the court has the power to modify, affirm, or reverse the decision of the Commissioner if any essential finding of the Administrative Law Judge (“ALJ”) is not supported by substantial evidence. Adams v. Secretary of Health and Human Serv.’s, 653 F.Supp. 249, 250 (C.D.Ill.1986) (citing 42 U.S.C. § 405(g)); Callaghan v. Shalala, 992 F.2d 692, 695 (7th Cir.1993). Where the Appeals Council declines to review a decision of the ALJ, that decision becomes the final decision of the Commissioner. Schroeter v. Sullivan, 977 F.2d 391, 394 (7th Cir.1992). The court must affirm the denial of a request for waiver of repayment if substantial evidence supports the decision and the Commissioner has committed no error of law. Strunk v. Heckler, 732 F.2d 1357, 1359 (7th Cir.1984). “Substantial evidence” is relevant evidence that a reasonable mind would “accept as adequate to support a conclusion.” Angevine v. Sullivan, 881 F.2d 519, 521 (7th Cir.1989) (quoting Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). The reviewing court may not substitute its own judgment for that of the ALJ or reweigh the evidence; nor may the court simply rubber-stamp the ALJ’s decision. Schroeter, 977 F.2d at 394; Cass v. Shalala, 8 F.3d 552, 555 (7th Cir.1993). The court must review the record in its entirety, not just the evidence that supports the Commissioner’s decision. Bauzo v. Bowen, 803 F.2d 917, 923 (7th Cir.1986). However, where reasonable minds could differ in construing the evidence, the court must defer to the Commissioner’s decision. Angevine, 881 F.2d at 521. A specific statute, 42 U.S.C. § 404, covers overpayments of Social Security benefits: (a) Procedure for Adjustment or Recovery Whenever the Secretary finds that more or less than the correct amount of payment has been made to any person under this subchapter, proper adjustment or recovery shall be made, under regulations prescribed by the Secretary, as follows: (b)" }, { "docid": "99287", "title": "", "text": "OPINION AND ORDER GERSHON, District Judge. Plaintiff Carmen Mejia applied for Social Security disability insurance benefits on May 9, 2000. Her application was denied on September 15, 2000. Plaintiff promptly requested a hearing to appeal that denial. On July 26, 2001, plaintiff appeared, represented by counsel, before Administrative Law Judge Irving Fleigler (“ALJ”). By decision dated March 23, 2002, the ALJ denied plaintiff benefits based on a de novo review of the record. The parties agree that the ALJ’s determination became the final decision of the Commissioner as of May 22, 2002. Pursuant to 42 U.S.C. § 405(g), plaintiff commenced this action on April 30, 2002. On December 2, 2002, defendant Commissioner of Social Security (“Commissioner”) moved for judgment on the pleadings on the ground that the ALJ’s determination that plaintiff was not disabled was supported by substantial evidence. On January 2, 2003, plaintiff submitted her opposition to the Commissioner’s motion and moved for judgment on the pleadings and for a remand solely for an award of benefits. Pursuant to 42 U.S.C. § 405(g) of the Social Security Act, the findings of the Commissioner as to any fact, “if supported by substantial evidence, shall be conclusive.” Substantial evidence is such evidence that 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). Where a court finds that substantial evidence exists to support the agency’s determination, the decision will be upheld, even where contrary evidence exists. DeChirico v. Callahan, 134 F.3d 1177, 1182 (2d Cir.1998) (affirming agency determination where substantial evidence existed for both sides). This standard applies to findings of fact as well as to inferences and conclusions drawn from such facts. D’Amato v. Apfel, 2001 WU 776945, at *3 (S.D.N.Y.2001), 2001 U.S. Dist. LEXIS 9459, at *10, aff''d 42 Fed.Appx. 415 (2002). A district court reviews de novo whether the correct legal standard is applied and whether or not the ALJ’s decision was based on the application of that standard. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir.1999); Johnson v. Bowen, 817 F.2d" }, { "docid": "7191464", "title": "", "text": "MEMORANDUM AND ORDER SAFFELS, District Judge. This matter is before the court on plaintiffs Complaint (Doc. 1), filed June 11, 2001, appealing the Social Security Commissioner’s denial of his application for disability benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. For the following reasons, defendant’s decision is reversed and the case is remanded for further proceedings. I. PROCEDURAL HISTORY Plaintiff filed an application for disability benefits on August 7, 1998, alleging his disability began on November 9, 1994. (R. 76-78). The application received consideration but was denied on December 8, 1998. (R. 62-63). Plaintiff appealed for recon sideration on January 22, 1999, yet, once again, on February 28, 1999, plaintiffs application was denied. (R. 64, 69-70). On June 4, 1999, a hearing was held before Administrative Law Judge Richard J. Kallsnick (“ALJ”). On August 11, 1999, the ALJ rendered a decision unfavorable to plaintiff. (R. 12-29). Plaintiff requested review by the Appeals Council, and on May 4, 2001, the Appeals Council declined plaintiffs request for review. (R. 5-6). Plaintiff brings the instant action seeking a reversal of defendant’s decision. II. STANDARD OF REVIEW The court’s standard of review is set forth in 42 U.S.C. § 405(g), which provides that “[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive .... ” Substantial evidence is more than a scintilla and is that evidence that a reasonable mind might accept as adequate to support a conclusion. See Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). The court will also determine whether defendant applied the correct legal standards. See Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir.1994). During its review, however, the court will not reweigh the evidence or substitute its judgment for defendant’s. See Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir.1994). On the other hand, the court will not merely accept defendant’s findings. See Claassen v. Heckler, 600 F.Supp. 1507, 1509 (D.Kan.1985). Any new evidence not considered by the ALJ but submitted to the Appeals Council" }, { "docid": "23551929", "title": "", "text": "OPINION SILER, Circuit Judge. Plaintiff Daniel L. Smith appeals the district court’s dismissal of his appeal of a final decision of the Commissioner of Social Security. He challenges the district court’s finding that the Commissioner’s decision to deny benefits was supported by substantial evidence. We AFFIRM. I. BACKGROUND Smith applied to the Social Security Administration (“SSA”) for supplemental security income and disability benefits on October 14, 1993. He claims disability based on neck and shoulder pain, neuropa-thy in his legs, depression, and migraines. The SSA Appeals Council adopted as the Commissioner’s final decision a memorandum opinion in which an administrative law judge (“ALJ”) concluded that Smith was not disabled and therefore not entitled to benefits because he could still perform jobs existing in significant numbers in the national economy despite his impairments. The ALJ based his finding on testimony from treating and examining physicians and a vocational expert. The ALJ attached a multiple-choice Psychiatric Review Technique (“PRT”) questionnaire to the memorandum opinion which assessed the degree of functional limitation caused by Smith’s mental impairment. As part of this assessment, the ALJ marked that Smith “Often” suffered “Deficiencies of Concentration, Persistence or Pace Resulting in Failure to Complete Tasks in a Timely Manner,” a rating in the middle of a five-part scale that ran from “Never” to “Constant.” The district court affirmed the Commissioner’s final decision. II. DISCUSSION Our review of the Commissioner’s decision is limited to determining whether the Commissioner’s findings of fact are supported by substantial evidence. See Garner v. Heckler, 745 F.2d 383, 387 (6th Cir.1984); see also 42 U.S.C. § 405(g) (stating that the Commissioner’s findings as to any fact are conclusive if supported by substantial evidence). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). A vocational expert’s testimony concerning the availability of suitable work may constitute substantial evidence where the testimony is elicited in response to a hypothetical question that accurately sets forth the plaintiffs physical and mental impairments. See Varley" }, { "docid": "22616583", "title": "", "text": "review by this court. Smolen contends that the ALJ erred in determining she was not disabled: (1) by improperly rejecting Smolen’s subjective symptom testimony; (2) by improperly rejecting physician’s opinions; and (3) by improperly rejecting lay testimony. Smolen also argues that the ALJ’s decision was not supported by substantial evidence. We have jurisdiction to hear the appeal pursuant to 28 U.S.C. § 1291 and reverse and remand. STANDARD OF REVIEW We review the district courts decision de novo and therefore must independently determine whether the Commissioner’s decision (1) is free of legal error and (2) is supported by substantial evidence. Fair v. Bowen, 885 F.2d 597, 601 (9th Cir.1989). “Substantial evidence” means “more than a scintilla,” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971), but “less than a preponderance.” Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9th Cir.1975); see also Desrosiers v. Secretary of Health and Human Servs., 846 F.2d 573, 576 (9th Cir.1988). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 401, 91 S.Ct. at 1427 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)). In determining whether the Commissioner’s findings are supported by substantial evidence, we must consider the evidence as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner’s conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir.1985). We must give the facts a full review and must independently determine whether the Commissioner’s findings are supported by substantial evidence. Stone v. Heckler, 761 F.2d 530, 532 (9th Cir.1985). If we find that the ALJ’s findings are based on legal error or are not supported by substantial evidence in the record, we may set aside the Commissioner’s denial of Social Security insurance benefits. 42 U.S.C. § 405(g); Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir.1986); Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir.1985). DISCUSSION I. Relevant Time Period To be eligible for disabled child’s insurance benefits," }, { "docid": "7191465", "title": "", "text": "Plaintiff brings the instant action seeking a reversal of defendant’s decision. II. STANDARD OF REVIEW The court’s standard of review is set forth in 42 U.S.C. § 405(g), which provides that “[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive .... ” Substantial evidence is more than a scintilla and is that evidence that a reasonable mind might accept as adequate to support a conclusion. See Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). The court will also determine whether defendant applied the correct legal standards. See Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir.1994). During its review, however, the court will not reweigh the evidence or substitute its judgment for defendant’s. See Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir.1994). On the other hand, the court will not merely accept defendant’s findings. See Claassen v. Heckler, 600 F.Supp. 1507, 1509 (D.Kan.1985). Any new evidence not considered by the ALJ but submitted to the Appeals Council and considered in denying a request for review becomes part of the administrative record and will be considered by the court. O’Dell v. Shalala, 44 F.3d 855, 859 (10th Cir.1994). In order to determine whether a Social Security claimant is disabled, the Commissioner has developed a five-step sequential evaluation. 20 C.F.R. § 404.1520. See also Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.1988). If the claimant fails at any of the steps where he or she bears the burden of proof, consideration of any subsequent steps is rendered unnecessary. See id. at 750 (“If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary.”). The claimant bears the burden of proof at steps one through four. The initial inquiry is whether the claimant is engaged in substantial gainful activity. If not, the second step requires the fact finder to determine whether the claimant has a medically severe impairment or combination of impairments. See Bowen v. Yuckert, 482 U.S." } ]

[ { "docid": "1502147", "title": "", "text": "all federal income taxes finally determined to be due for the years involved. United States v. Stoehr, 196 F.2d 276, 284 (3d Cir. 1952), certiorari denied, 344 U.S. 826, 73 S.Ct. 28, 97 L.Ed. 643. As stated in United States v. Taylor, 305 F.2d 183, 187 (4th Cir. 1962), certiorari denied, 371 U.S. 894, 83 S.Ct. 193, 9 L.Ed.2d 126, restitution to the government is limited by that clause to those taxes that “are legally determined during the probational period to be owing and collectible.” Defendant does not contest the validity of the assessment of the taxes, interest and penalties due as totaling approximately $200,000. He has made no showing whatsoever that the trial judge abused his discretion in imposing the tax payment as a condition to probation. Defendant also asserts that the district judge was required to find the facts specially under Rule 23(c) of the Federal Rules of Criminal Procedure. This request was not made until several days after the general finding that defendant had violated the conditions of the probation order. Assuming, arguendo, the timeliness of defendant’s request, Rule 23(c) is inapplicable. Rule 23(c) governs bench trials where a jury has been waived and where a general finding of guilty or not guilty will result. 8 Moore’s Federal Practice, § 23.-05 (1970); Barron & Holtzhoff, Federal Practice and Procedure, § 2124 (Rules Edition). In such instances Rule 23(c) is mandatory upon a request for special findings of facts. United States v. Morris, 263 F.2d 594 (7th Cir. 1959). The district judge correctly concluded here that a probation revocation hearixlg is not such a trial, so that Rule 23(c) is inapplicable. See Burns v. United States, 287 U.S. 216, 222, 53 S.Ct. 154, 77 L.Ed. 266; cf. United States v. Koury, 319 F.2d 75, 77 (6th Cir. 1963); United States v. Taylor, 321 F.2d 339, 342 (4th Cir. 1963). Defendant next attacks the admission of Government Exhibit 36, which is a certificate of the Commissioner of Public Debt that 13 specified $5,000 treasury notes, allegedly owned by defendant, were still outstanding on October 23, 1969, a week before" } ]

[ { "docid": "14226830", "title": "", "text": "TJOFLAT, Circuit Judge: The defendants-appellants, Masri and Ghalayini, where convicted in a joint, non-jury trial of conspiracy to import heroin in violation of 21 U.S.C. §§ 952(a) & 963 (1970). They assert multiple errors on appeal. Finding each of them either meritless or harmless, we affirm. I. Sufficiency of the Evidence Initially, the appellants claim that the evidence before the district court was insufficient to support their convictions. Viewing the evidence in the light most favorable to the Government, as mandated by Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), we disagree. The evidence adduced at trial demonstrated that Masri intended to import heroin into the United States from his contacts in Lebanon. Both he and his brother traveled there to make arrangements and supervise operations. Moreover, ample testimony established that Ghalayini agreed to act, and did act, as a contact between Masri and the purported purchaser, Agent Short of the Drug Enforcement Agency (DEA). In the light of this evidence, we conclude that it was well within the trial court’s discretion to discredit Masri’s contention that he only dealt with Short to ensnare him in an elaborate con game and that he never did intend to traffic in drugs. II. Pre-trial Proceedings The appellants next assert that this proceeding must be remanded to the trial court for special findings of fact by the trial judge. When they asked for a bench trial, the court had them sign a form which is entitled “Waiver of Jury and Special Findings”. The use of the form, reproduced in the margin, is claimed to link impermissibly the two waivers, making the waiver of fact finding involuntary. Reliance is placed on United States v. Livingston, 459 F.2d 797 (3d Cir. 1972) (en banc) and Howard v. United States, 423 F.2d 1102 (9th Cir. 1970). In both Livingston and Howard the trial court had explicitly refused to grant a bench trial unless special findings were waived. Such coercive conduct was disapproved in both instances. In the present case, however, the trial court did not engage in any sort" }, { "docid": "14226841", "title": "", "text": "be approved. (Date) (Attorney for Defendant) The United States Attorney hereby consents that the case be tried without a Jury and waives £he right to request any special findings of fact as provided by Rule 23(c) of the Federal Rules of Criminal Procedure. (Date) (Assistant United States Attorney) Approved this day of UNITED STATES DISTRICT JUDGE . Federal Rule of Criminal Procedure 23 states in relevant part, (a) Trial by Jury. Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government. ****** (c) Trial Without a Jury. In a case tried without a jury the court shall make a general finding and shall in addition on request find the facts specially. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact appear therein. . The Livingston court stated, ‘‘The district court cannot, by procuring such a pre-trial waiver, avoid its responsibility to make findings of fact when presented with a timely request.” 459 F.2d at 798. The Ninth Circuit held in Howard, “We cannot condone an avoidance of Rule 23(c) by the expedient of conditioning a jury waiver on.a waiver of special findings. The defendant’s right to such findings is not trivial, and his exercise of that right is not to be impaired by the exertion of pressure from the court.” 423 F.2d at 1104. . See note 1 supra. . A simple restructuring of the form found in note 1 supra to provide a separate line for signature after each waiver would help eliminate the present ambiguities of that form. . In the Seventh Circuit, it is in the trial court’s discretion as to whether or not to allow polygraph results into evidence. United States v. Infelice, 506 F.2d 1358 (7th Cir. 1974); United States v. Penick, 496 F.2d 1105 (7th Cir. 1974). . It is unnecessary for us to determine, of course, whether other, independent grounds existed for the admissibility of the challenged utterances. . We delayed decision" }, { "docid": "21572582", "title": "", "text": "the allocation of the burden of proof in nonjury trials, we believe that Pisello’s Rule 23(c) motion sufficed. See 2 C. Wright, Federal Practice and Procedure § 374, at 313-14 (2d ed. 1982) (“A request for special findings is the appropriate way to preserve for appeal a contention that the court applied an erroneous standard of law — ”); see also United States v. Morris, 263 F.2d 594, 595-96 (7th Cir.1959) (same); Wilson v. United States, 250 F.2d 312, 325 (9th Cir.1957) (same). B. What the District Court Decided If the district court had required Pisello to prove that the payments were loans, we would have to conclude that the court erred. See Holland v. United States, 348 U.S. 121, 138-39, 75 S.Ct. 127, 136-37, 99 L.Ed. 150 (1954) (holding that the government always retains the ultimate burden of proving every element of a tax offense beyond a reasonable doubt). Also, we agree that the district court could have phrased its comment about whether a loan existed more carefully. When the district court said that there was insufficient evidence to show that a loan existed, we do not accept the view that the court thought that Pisello had the burden to establish that a loan existed. The court was merely observing that having considered both the government and Pisello’s evidence he was deciding the issue against him. This in no way indicates that the district court did not know that the government must prove its case beyond a reasonable doubt. Appellate review does not require that we suspend reason while interpreting the language employed by district judges. We conclude that the court did not place the burden of proof on Pisello. VI. SUFFICIENCY OF THE EVIDENCE ON COUNT III Pisello argues next that the government did not produce sufficient evidence to sus tain his conviction under count III of the indictment. We disagree. To prove attempted tax evasion under 26 U.S.C. § 7201, the government must show only the existence of a tax deficiency and a willful, affirmative act constituting evasion or attempted evasion. See Sansone v. United States, 380" }, { "docid": "20119123", "title": "", "text": "some of the district court’s remarks at the close of trial suggest that it could have found knowledge of illegal importation without regard to the presumption, other remarks suggest to the contrary. Adding to that ambiguity is the court’s express refusal at the beginning of trial to make special findings. On our own motion we notice that the district court refused to accept the waiver of jury trial both by the Government and by the defendant, unless and until the defendant signed a waiver of his earlier requested special findings. Under Rule 23(c) of the Federal Rules of Criminal Procedure the defendant was entitled to those findings, and it would have been reversible error to have refused his timely request for them. (United States v. Morris (7th Cir. 1959) 263 F.2d 594.) We cannot condone an avoidance of Rule 23(c) by the expedient of conditioning a jury waiver on a waiver of special findings. The defendant’s right to such findings is not trivial, and his exercise of that right is not to be impaired by the exertion of pressure from the court. (See Wilson v. United States (9th Cir. 1957) 250 F.2d 312, 325; see also Skidmore v. Baltimore & O. R. Co. (2d Cir.) 167 F.2d 54, cert. denied (1948) 335 U.S. 816, 69 S.Ct. 34, 93 L.Ed. 371; 2 C. Wright, Federal Practice and Procedure (1969) § 374.) The judgment is reversed, and the cause is remanded for a new trial. . There is no challenge to the validity of this search. A quantity of marihuana, the subject of the first count, was found' in the inside door panels of the car. . In pertinent part § 781 provides: “(a) It shall be unlawful (1) to transport, carry, or convey any contraband article in, upon, or by means of any vessel, vehicle, or aircraft; (2) to conceal or possess any contraband article in or upon any vessel, vehicle, or aircraft, or upon the person of anyone in or upon any vessel, vehicle, or aircraft; or (3) to use any vessel, vehicle, or aircraft to facilitate the transportation, carriage," }, { "docid": "3164965", "title": "", "text": "either on the trial for the obstruction, or in the event giving rise to it, to lay down the requirements as to the nature or kind or amount of proof of the Officer’s status. His badge, his written credentials, his Commission are not the only means. His declaration of his official status may well be enough, . especially where, as here, it is repeatedly made, and its acceptance as the truth by defendants is credited through the jury’s verdict of guilty.” 231 F.2d 232, 235 (5th Cir. 1956) (citations omitted). . Agents were dressed primarily in civilian clothing. Some of the agents, however, wore navy blue raid jackets with gold embossments. One shoulder embossment depicted the emblem of the San Antonio Police Department; the other shoulder embossment depicted the emblem of the Department of Justice, DEA division. A replica of a DEA badge — four times larger than an official badge — appeared on the front of the jacket. . Ochoa did not request the trial court to find the facts specifically, as he might have done under Rule 23(c) of the F.R.Crim.P., thus special findings were waived. On appeal, findings will be implied in support of the judgment if the evidence, viewed in a light most favorable to the government, warrants them. McClain v. United States, 417 F.2d 489, 492 (9th Cir. 1969); 8 Moore’s Federal Practice jl 23.05 (2d ed. 1965)." }, { "docid": "3437919", "title": "", "text": "to-be drawn now could operate to his prejudice in light of the present posture of the case as distinguished from the time his request was made at the trial. One of the reasons we took the Government’s motion with the case is that no Court of Appeals seems to have been called upon to pass upon this question. Defendant contends and the Government concedes that Rule 23(c), supra, is mandatory. Defendant’s request was timely and the trial court’s failure to heed the mandate of the rule was clear error. This is pointed up in Barron & Holtzoff, Federal Practice and Procedure, § 2124 (Rules Edition), which reads in part: “Rule 23(c) requires that in all cases tried without a jury the court or judge must make a general finding. This may be a general finding of either guilty or not guilty. In addition to a general finding, on request, the court or judge must find the facts specially. “The Advisory Committee points out that this rule changed pre-exist-ing law in so far as it requires the court in a case tried without a jury to make special findings of fact, if requested.” In a case in which special findings were made the court expressed one of the reasons for the rule as follows: “That rule [Rule 23(c)] indicates the proper procedure by which a defendant may preserve a question of law for purposes of appeal.” Cesario v. United States, 1 Cir., 1952, 200 F.2d 232, 233. In a case in which findings were not requested, it was said: “Ordinarily, the remedy to rectify a misconception regarding the significance of a particular fact, such as a particular state of mind, is to request special findings pursuant to * * * Rule 23, * * Wilson v. United States, 9 Cir., 1958, 250 F.2d 312, 325. Without deciding whether the procedure suggested by the Government, that is, ordering the appeal held in abeyance pending such findings would be proper in another case, or whether, in a proper case, the judgment of conviction should be vacated and the case remanded for findings and" }, { "docid": "14226840", "title": "", "text": "DISTRICT OF FLORIDA Case No. _ UNITED STATES OF AMERICA, 1 Plaintiff, 1 vs. ) ) Defendant. ) WAIVER OF JURY AND SPECIAL FINDINGS The undersigned Defendant, having been fully advised in the premises, hereby waives the right to a trial by Jury and requests the Court to try all charges against him in this case without a Jury. The undersigned Defendant further waives the right to request any special findings of fact as provided by Rule 23(c) of the Federal Rules of Criminal Procedure. (Date) (Defendant) The undersigned attorney represents that prior to the signing of the foregoing Waiver, the Defendant above named was fully advised as to the rights of an accused under the Constitution and the law to a speedy and public trial by an impartial Jury, and the right to request special findings in a case tried without a Jury; and counsel further represents that, in his opinion, the above waiver of trial by jury and special findings is voluntarily and understandingly made, and recommends to the Court that said Waiver be approved. (Date) (Attorney for Defendant) The United States Attorney hereby consents that the case be tried without a Jury and waives £he right to request any special findings of fact as provided by Rule 23(c) of the Federal Rules of Criminal Procedure. (Date) (Assistant United States Attorney) Approved this day of UNITED STATES DISTRICT JUDGE . Federal Rule of Criminal Procedure 23 states in relevant part, (a) Trial by Jury. Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government. ****** (c) Trial Without a Jury. In a case tried without a jury the court shall make a general finding and shall in addition on request find the facts specially. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact appear therein. . The Livingston court stated, ‘‘The district court cannot, by procuring such a pre-trial waiver, avoid its responsibility to make findings of" }, { "docid": "19993066", "title": "", "text": "of consistent insight into its reach. We, furthermore, know that Article 51(d), UCMJ, was intended by Congress to be a mirror image of Rule 23(c), Federal Rules of Criminal Procedure (Fed.R.Crim.P.). Thus, federal civilian court precedent is a legitimate source of instruction as to the meaning of the terms “finding of facts specially” and “findings of fact appear therein” as found in Article 51(d), UCMJ. Without recounting the exploration of our inquiry on this subject in detail, we can state certain conclusions that — notwithstanding the apparent limitations contained within the words “findings of fact” — serve to define and con fine these terms of art. The purposes which Rule 23(c), Fed.R.Crim.P. — and, hence, Article 51(d), UCMJ, and Paragraph 74i, MCM, 1969 (Rev.) — were designed to serve have been succinctly summarized in United States v. Falin, 43 C.M.R. 702 (A.C.M.R.1971), in the following words: Special findings are to a bench trial as instructions are to a trial before members. Such procedure is designed to preserve for appeal questions of law. Cesarlo v. United States, 200 F.2d 232, 233 (1st Cir.1952). It is the remedy designed to rectify judicial misconceptions regarding: the significance of a particular fact, Wilson v. United States, 250 F.2d 312, 325 (9th Cir.1958); the application of any presumption, Howard v. United States, 423 F.2d 1102, 1104 (9th Cir.1970); or the appropriate legal standard, United States v. Morris, 263 F.2d 594 (7th Cir. 1959). United States v. Falin, supra, at 704. Accord, see United States v. Hussey, supra. Thus, requested special findings which would serve any of these purposes would seem to be embraced within the requirements imposed by Article 51(d), UCMJ. All service Courts of Military Review have adopted this analysis. The military courts have, however, split on the question whether special findings were mandated, when requested, on interlocutory questions such as those raised by motion to dismiss. Compare United States v. Ericson, 13 M.J. 725 (N.M.C.M.R.1982), and United States v. Kressin, 2 M.J. 283 (A.F.C.M.R.1976), rev’d, 5 M.J. 393 (C.M.A. 1978) (on separate issue), with United States v. Baker, 47 C.M.R. 507 (A.C.M.R. 1973)," }, { "docid": "22143893", "title": "", "text": "that a verdict following any of the foregoing alternatives, if properly found, would be sustained. But the verdict must be rendered under proper and applicable rules of law. Another point requires discussion. Ordinarily, the remedy to rectify a misconception regarding the significance of a particular fact, such as a particular state of mind, is to request special findings pursuant to the provisions of Rule 23 of the Federal Rules of Criminal Procedure, 18 U.S.C.A. Cesario v. United States, 1 Cir., 200 F.2d 232. No such formal request was made in the instant case. However, counsel for appellant repeatedly called the trial court’s attention to this matter, and, as indicated previously, the trial court’s remarks at the time of verdict bore on it. Moreover, counsel for the Government did not raise the point of Rule 23 on this appeal. Therefore, while we believe resort to Rule 23 ordinarily must be made to preserve such an issue on appeal, we also believe that the circumstances of this case are such that it would perpetuate an injustice to deprive appellant of the opportunity to question the propriety of the trial court’s conception of the constituent elements of the offense. The other question tendered by this appeal relates to the exclusion of certain evidence, i. e., that appellant, through his attorney, had negotiated and entered into an understanding and agreement with representatives of the Internal Revenue Service in Portland, Oregon in May, 1955, whereby certain assets were to be sold to pay off Coast Redwood Company’s tax obligations. The District Court took notice of the fact of the negotiations and understanding. It refused to allow the attorney to testify as to the details on the ground that such evidence was immaterial. The trial judge possesses wide latitude in the determination of the relevancy or materiality of evidence and his ruling cannot be reversed in the absence of an abuse of discretion. The evidence offered went to the defendant’s state of mind. It concerned actions taken over three years after the indictment period commenced and its probative value, if any, was slight. We cannot hold" }, { "docid": "8837232", "title": "", "text": "waived a jury trial, ‘ he also waived special findings of fact. He claims nevertheless it was error for the court not to make special findings, and cites Howard v. United States, 423 F.2d 1102 (9th Cir.1970), as authority. Howard held that the trial court could not condition a jury waiver upon a waiver of special findings of facts. Neither the waiver form signed by Andreen nor the colloquy between Andreen and the court suggest such an impermissible condition here. No attempt was made to reserve the right to request special findings. The composite waiver form, containing waivers of both a jury trial and findings of fact, may be subject to criticism but it is not per se improper. Unlike the situation in Howard, the waivers were independent and not conditioned, one upon the other. See United States v. Masri, 547 F.2d 932 (5th Cir.), cert. denied, 434 U.S. 907, 98 S.Ct. 309, 54 L.Ed.2d 195 (1977). The written waiver was explicit: “The undersigned defendant further waives the right to request any special findings of fact as provided by Rule 23(c) of the Federal Rules of Criminal Procedure.” Andreen, an attorney for 26 years, with the able assistance of counsel, signed the dual waiver form. He was subsequently questioned by the trial judge as to his understanding thereof and as to the voluntariness of his action. Under all the circumstances, we find Andreen entered an effective waiver of special findings. 3. Verdict Andreen challenges the decision of the trial court to hear the jury verdict as to his codefendants prior to completion of closing arguments in his case to the court. The judge instructed the jury on May 24, 1977, and they retired to deliberate. Counsel in Andreen’s case began closing arguments on May 25th. At 3:00 p.m. that day the jury announced it had reached a verdict. The court convened counsel in Andreen’s case and acknowledged the dilemma-whether to take the verdict or to defer until after a decision in Andreen’s ease. Ultimately, the judge read the jury verdict finding Andreen’s codefendants guilty on all counts. Counsel then completed" }, { "docid": "20119122", "title": "", "text": "an automobile to commute to the scene of a crime does not justify the seizure of that automobile under sections 781 and 782. (Platt v. United States, supra; United States v. One 1952 Ford Victoria (N.D.Cal.1953) 114 F.Supp. 458; cf. Carroll v. United States (1925) 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Simpson v. United States (9th Cir. 1959) 272 F.2d 229.) Burge v. United States (9th Cir.) 342 F.2d 408, cert. denied, 382 U.S. 829, 86 S.Ct. 63, 15 L.Ed.2d 72 (1965) is not to the contrary, for there the seizing officers had probable cause to believe either that contraband had been carried in the automobile or that an illegal narcotics transaction had taken place in it. Howard’s conviction on the first count must be also be reversed, for we are unable to determine whether or not the district court relied on the presumption invalidated by Leary v. United States (1969) 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57. (See United States v. Scott (9th Cir. 1970) 425 F.2d 55.) Although some of the district court’s remarks at the close of trial suggest that it could have found knowledge of illegal importation without regard to the presumption, other remarks suggest to the contrary. Adding to that ambiguity is the court’s express refusal at the beginning of trial to make special findings. On our own motion we notice that the district court refused to accept the waiver of jury trial both by the Government and by the defendant, unless and until the defendant signed a waiver of his earlier requested special findings. Under Rule 23(c) of the Federal Rules of Criminal Procedure the defendant was entitled to those findings, and it would have been reversible error to have refused his timely request for them. (United States v. Morris (7th Cir. 1959) 263 F.2d 594.) We cannot condone an avoidance of Rule 23(c) by the expedient of conditioning a jury waiver on a waiver of special findings. The defendant’s right to such findings is not trivial, and his exercise of that right is not to be impaired by" }, { "docid": "14226842", "title": "", "text": "fact when presented with a timely request.” 459 F.2d at 798. The Ninth Circuit held in Howard, “We cannot condone an avoidance of Rule 23(c) by the expedient of conditioning a jury waiver on.a waiver of special findings. The defendant’s right to such findings is not trivial, and his exercise of that right is not to be impaired by the exertion of pressure from the court.” 423 F.2d at 1104. . See note 1 supra. . A simple restructuring of the form found in note 1 supra to provide a separate line for signature after each waiver would help eliminate the present ambiguities of that form. . In the Seventh Circuit, it is in the trial court’s discretion as to whether or not to allow polygraph results into evidence. United States v. Infelice, 506 F.2d 1358 (7th Cir. 1974); United States v. Penick, 496 F.2d 1105 (7th Cir. 1974). . It is unnecessary for us to determine, of course, whether other, independent grounds existed for the admissibility of the challenged utterances. . We delayed decision in this case until the district court, pursuant to our instructions, transmitted to us its certified order and a transcript of the proceedings below. . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)" }, { "docid": "16454328", "title": "", "text": "answers are consistent with each other but one or more is inconsistent with the general verdict, judgment may be entered pursuant to Rule 58 in accordance with the answers, notwithstanding the general verdict, or the court may return the jury for further consideration of its answers and verdict or may order a new trial. When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, judgment shall not be entered, but the court shall return the jury for further consideration of its answers and verdict or shall order a new trial. . Fed.R.Crim.P. 23(c): (c) Trial Without a Jury. In a case tried without a jury the court shall make a general finding and shall in addition, on request made before the general finding, find the facts specially. Such findings may be oral. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact appear therein. . See Gray v. United States, 174 F.2d 919 (8th Cir.), cert. denied, 338 U.S. 848, 70 S.Ct. 90, 94 L.Ed. 519 (1949); United States v. Spock, 416 F.2d 165 (1st Cir. 1969); United States v. Ogull, 149 F.Supp. 272 (S.D.N.Y.1957). . See United States v. Ogull, 149 F.Supp. 272 (S.D.N.Y.1957) (“To ask the jury special questions might be said to infringe on its power to deliberate free from legal fetters . . ”); see also 8A Moore’s Federal Practice and Procedures § 31.02 [3] and 2 Wright, Federal Practice and Procedure § 512. . See United States v. O’Looney, 544 F.2d 385, 392 (9th Cir. 1976) (“As a rule, special verdicts in criminal cases are not favored.”); Heald v. Mullaney, 505 F.2d 1241, 1245 (1st Cir. 1974) (“We have little doubt that, in general, the use of special questions and verdicts in any criminal proceeding, state or federal, is suspect not only as a matter of sound judicial policy but of due process as well.”) . The Court: “It’s my understanding that there may be a question of admissibility of a statement by the Defendant when she came" }, { "docid": "3437920", "title": "", "text": "the court in a case tried without a jury to make special findings of fact, if requested.” In a case in which special findings were made the court expressed one of the reasons for the rule as follows: “That rule [Rule 23(c)] indicates the proper procedure by which a defendant may preserve a question of law for purposes of appeal.” Cesario v. United States, 1 Cir., 1952, 200 F.2d 232, 233. In a case in which findings were not requested, it was said: “Ordinarily, the remedy to rectify a misconception regarding the significance of a particular fact, such as a particular state of mind, is to request special findings pursuant to * * * Rule 23, * * Wilson v. United States, 9 Cir., 1958, 250 F.2d 312, 325. Without deciding whether the procedure suggested by the Government, that is, ordering the appeal held in abeyance pending such findings would be proper in another case, or whether, in a proper case, the judgment of conviction should be vacated and the case remanded for findings and a judgment entered in conformity therewith, we have concluded that in this case the substantial rights of all parties will be best served by a new trial. We hold that-it was error for the trial court to refuse to find the facts specially on request of defendant, and the judgment of conviction is reversed and this cause is remanded to the district court for a new trial. . Title 26 U.S.C.A. § 4705(a) and Title 21 U.S.C.A. § 174, both as amended by the Narcotics Control Act of 1956." }, { "docid": "3437918", "title": "", "text": "said court to enter Findings of Fact, * * *; that upon the making of such Findings of Fact the court below forthwith transmit the record on appeal, including the proceedings had upon the making of such Findings of Fact, to this court for further disposition; and that the instant appeal be held in abeyance pending such further proceeding.” Following oral argument defendant filed his reply brief suggesting that the procedure requested by the Government “would not solve the dilemma created by the trial court’s refusal to make findings of fact, but rather, would enhance the present problem and create additional ones,” and urged a reversal and remandment for a new trial. Among other things, defendant urgently, points out that the Government, before initially suggesting remandment for findings, had and now has (following oral argument by him on the merits) the benefit of defendant’s attack upon the insufficiency of the evidence in this case, as well as defendant’s argument directed to the weakness of the Government’s case. He claims that to permit findings of fact to-be drawn now could operate to his prejudice in light of the present posture of the case as distinguished from the time his request was made at the trial. One of the reasons we took the Government’s motion with the case is that no Court of Appeals seems to have been called upon to pass upon this question. Defendant contends and the Government concedes that Rule 23(c), supra, is mandatory. Defendant’s request was timely and the trial court’s failure to heed the mandate of the rule was clear error. This is pointed up in Barron & Holtzoff, Federal Practice and Procedure, § 2124 (Rules Edition), which reads in part: “Rule 23(c) requires that in all cases tried without a jury the court or judge must make a general finding. This may be a general finding of either guilty or not guilty. In addition to a general finding, on request, the court or judge must find the facts specially. “The Advisory Committee points out that this rule changed pre-exist-ing law in so far as it requires" }, { "docid": "19993067", "title": "", "text": "States, 200 F.2d 232, 233 (1st Cir.1952). It is the remedy designed to rectify judicial misconceptions regarding: the significance of a particular fact, Wilson v. United States, 250 F.2d 312, 325 (9th Cir.1958); the application of any presumption, Howard v. United States, 423 F.2d 1102, 1104 (9th Cir.1970); or the appropriate legal standard, United States v. Morris, 263 F.2d 594 (7th Cir. 1959). United States v. Falin, supra, at 704. Accord, see United States v. Hussey, supra. Thus, requested special findings which would serve any of these purposes would seem to be embraced within the requirements imposed by Article 51(d), UCMJ. All service Courts of Military Review have adopted this analysis. The military courts have, however, split on the question whether special findings were mandated, when requested, on interlocutory questions such as those raised by motion to dismiss. Compare United States v. Ericson, 13 M.J. 725 (N.M.C.M.R.1982), and United States v. Kressin, 2 M.J. 283 (A.F.C.M.R.1976), rev’d, 5 M.J. 393 (C.M.A. 1978) (on separate issue), with United States v. Baker, 47 C.M.R. 507 (A.C.M.R. 1973), and United States v. Falin, supra. Any debate on this point has clearly been rendered moot by the adoption of R.C.M. 905(d). As to pure questions of law which, in a members ease, the military judge, as the sole source of the law, would resolve, the pre-RCM military cases were consistent in finding such questions to be not a proper subject for special findings. See United States v. O’Quin, 16 M.J. 650, 652 n. 2 (A.F.C.M.R.1983), United States v. Ericson, supra; United States v. Kressin, supra. Finally, the statutory language of Paragraph 74i, MCM, 1969 (Rev.), delineated three specific areas in which special findings are required: “findings as to the elements of the offenses of which accused may be found guilty, findings on the question of mental responsibility if raised by the evidence, and findings on special defenses reasonably in issue.” A paradigm which serves to define the reach of the term “findings of fact” as expressed in Article 51(d), UCMJ, has thus been established by prior military and federal case law. The question to" }, { "docid": "8837231", "title": "", "text": "reasons, Andreen, with the advice of counsel, chose to try his case to the court. We find no reason to question his strategic choice. The Government asserts that by his election, Andreen failed to preserve his objection regarding severance. We need not decide whether the decision to try one’s case to the court with a simultaneous jury trial for codefendants dissipates all objections to a joint trial, although there appears to be some merit to the Government’s argument. Rather, we base our determination on the failure to show prejudice under the facts of the case. The moving party has the burden of proving clear, manifest, or undue prejudice from a joint trial. United States v. McDonald, 576 F.2d 1350, 1355 (9th Cir.), cert. denied, 439 U.S. 927, 99 S.Ct. 312, 58 L.Ed.2d 320 (1978). Andreen’s allegations of prejudice pertain to problems inherent in any joint trial. He has failed to show any specific prejudice, and we therefore reject this ground of appeal. 2. Waiver of Findings of Fact The record affirmatively establishes that when Andreen waived a jury trial, ‘ he also waived special findings of fact. He claims nevertheless it was error for the court not to make special findings, and cites Howard v. United States, 423 F.2d 1102 (9th Cir.1970), as authority. Howard held that the trial court could not condition a jury waiver upon a waiver of special findings of facts. Neither the waiver form signed by Andreen nor the colloquy between Andreen and the court suggest such an impermissible condition here. No attempt was made to reserve the right to request special findings. The composite waiver form, containing waivers of both a jury trial and findings of fact, may be subject to criticism but it is not per se improper. Unlike the situation in Howard, the waivers were independent and not conditioned, one upon the other. See United States v. Masri, 547 F.2d 932 (5th Cir.), cert. denied, 434 U.S. 907, 98 S.Ct. 309, 54 L.Ed.2d 195 (1977). The written waiver was explicit: “The undersigned defendant further waives the right to request any special findings of" }, { "docid": "14226831", "title": "", "text": "the trial court’s discretion to discredit Masri’s contention that he only dealt with Short to ensnare him in an elaborate con game and that he never did intend to traffic in drugs. II. Pre-trial Proceedings The appellants next assert that this proceeding must be remanded to the trial court for special findings of fact by the trial judge. When they asked for a bench trial, the court had them sign a form which is entitled “Waiver of Jury and Special Findings”. The use of the form, reproduced in the margin, is claimed to link impermissibly the two waivers, making the waiver of fact finding involuntary. Reliance is placed on United States v. Livingston, 459 F.2d 797 (3d Cir. 1972) (en banc) and Howard v. United States, 423 F.2d 1102 (9th Cir. 1970). In both Livingston and Howard the trial court had explicitly refused to grant a bench trial unless special findings were waived. Such coercive conduct was disapproved in both instances. In the present case, however, the trial court did not engage in any sort of coercive behavior, and there was never a request made for special findings. The form does not make the two waivers conditional on each other, and no attempt was ever made by any party to reserve the right to request special findings. Instead, the attorney for the defendant represented that, in his opinion, “the above waiver of trial by jury and special findings is voluntarily and understandably made . . . .” We recognize the cogency of the appellants’ argument. The form utilized has only one line for the attorney to sign a waiver of both his jury trial and his right to special findings. Parties could easily be misled to conclude that one must waive both or neither. The form, therefore, by the way it is structured violates to some extent the spirit of our admonition in United States v. Johnson, 496 F.2d 1131, 1137 (5th Cir. 1971): In some situations, it may be impermissibly coercive for a trial court to condition a non-jury trial on the waiver of special findings of fact. Special" }, { "docid": "2506793", "title": "", "text": "dissenting in part: I concur in all of the majority opinion except part 11(D), and as to that and the result, I respectfully dissent. I would affirm the judgment of the district court. I suggest that the majority’s holding implicitly requires more specific findings of fact in sentencing determinations than are required for findings of guilt. Because a district court, absent a special request by a defendant, does not have to make specific findings of fact when determining guilt, we should not place a greater burden on a district court when determining a sentence. Fed.R.Crim.P. 23(c) states that a district court shall make general findings of fact when determining guilt in a trial without a jury. The district court is only required to make specific findings of fact if the defendant so requests before the court makes its general finding. See Rule 23(c). If no such request is made, the district court has no obligation to make specific findings and we will affirm if sufficient evidence is in the record to support the district court’s determination. United States v. Bolles, 528 F.2d 1190, 1191 (4th Cir.1975). Fed. R.Crim.P. 32(c)(3)(D) should be considered analogous to the special request provision of Rule 23(c) with regard to a district court’s reliance on pre-sentence reports in determining a sentence. In United States v. Terry, 916 F.2d 157, 160 (4th Cir.1990), we stated that we found persuasive the holding that a pre-sentence report may serve as the sole factual basis for sentence determination. Under Rule 32(c)(3)(D) if a defendant objects to the factual accuracy of a presentence report before sentencing, the district court must make specific findings of fact before relying on the pre-sentence report or must state that no finding is necessary because the controverted matter will not be considered in determining a sentence. See Rule 32(c)(3)(D); United States v. Brooks, 957 F.2d 1138, 1150 (4th Cir.), cert. denied, — U.S. -, 112 S.Ct. 3051, 120 L.Ed.2d 917 (1992). Although Chambers did object to his pre-sentence report, the majority does not base its remand on this objection and the consequent operation of Rule 32(c)(3)(D)." }, { "docid": "21572581", "title": "", "text": "[any] transaction was not a loan....” The district court accepted the government’s proposal and stated in its written order: “There was insufficient evidence presented at trial that a loan ever existed or that Mr. Pisello intended that a loan be credited against him.” Pisello contends that the words of the court’s oral and written orders show that the court required him to prove that the MCA and Sugar Hill payments were loans, whereas it was the government’s obligation to prove beyond a reasonable doubt that they were income, not loans. The government asserts that Pisello failed to raise the issue in the district court and that Pisello has misinterpreted the court’s decision. A. Raising the Burden of Proof Issue The parties agree that if Pisello raised the burden of proof issue in the district court, we may review it de novo, but that, otherwise, we may review it only for plain error. See United States v. Benny, 786 F.2d 1410, 1417-18 (9th Cir.1986). Although we have not addressed the correct means of preserving questions about the allocation of the burden of proof in nonjury trials, we believe that Pisello’s Rule 23(c) motion sufficed. See 2 C. Wright, Federal Practice and Procedure § 374, at 313-14 (2d ed. 1982) (“A request for special findings is the appropriate way to preserve for appeal a contention that the court applied an erroneous standard of law — ”); see also United States v. Morris, 263 F.2d 594, 595-96 (7th Cir.1959) (same); Wilson v. United States, 250 F.2d 312, 325 (9th Cir.1957) (same). B. What the District Court Decided If the district court had required Pisello to prove that the payments were loans, we would have to conclude that the court erred. See Holland v. United States, 348 U.S. 121, 138-39, 75 S.Ct. 127, 136-37, 99 L.Ed. 150 (1954) (holding that the government always retains the ultimate burden of proving every element of a tax offense beyond a reasonable doubt). Also, we agree that the district court could have phrased its comment about whether a loan existed more carefully. When the district court said that" } ]

[ { "docid": "22757084", "title": "", "text": "is Goodwin v. United States, 127 Ct. Cl. 417, where a civil service employee reinstated in his job by order of the Civil Service Commission was held entitled to recover back pay, even beyond six years, because the Commission’s reinstatement order, mandatory on the employing agency, created new legal rights in the employee. See, to the same effect, Feldman v. United States, 149 Ct. Cl. 22; and O’Brien v. United States, 124 Ct. Cl. 655. If Sides were taken as holding that Correction Board action on a legal pay claim, based directly on statutes or regulations and not requiring administrative determination, creates a new cause of action for sums otherwise time-barred, it would be contrary to prior and subsequent decisions. In Goldstein v. United States, 131 Ct. Cl. 228, 233, the court had barred a veteran’s claim for back service pay at a higher grade (for a period prior to six years) even though the Correction Board had denied the same claim within six years. In Haislip, et al. v. United States, 152 Ct. Cl. 339, the court rejected, as barred, a claim for addtional pay (due to “re-retirement”) even though the Correction Board purported,. within six years, to correct the records to show that plaintiffs were entitled to the extra money. The court held that the issue was one of law and the claim had accrued 13 years earlier. And in White v. United States, No. 477-59, decided by order of April 13, 1962, 157 Ct. Cl. 939, the court held barred a 1959 suit for captain’s pay (from 1942 to Í947) by an enlisted man who was ordered to active duty as a captain in 1942 but who never served in that rank (because the orders were shortly cancelled). The plaintiff sought relief from the Correction Board on the ground that the termination of his appointment as captain was erroneous and unfair; relief was denied in October 1955 ; suit was brought in 1959. The court considered the claim to have accrued' no later than 1947. Por a discussion of the legislative history, see the Appendix to this" } ]

[ { "docid": "22793196", "title": "", "text": "Force 'Board for Correction of Military Records, which appeal was denied on January 17,1968. 'It is clear that these post-discharge remedies which the plaintiff pursued were permissive in nature and do not serve to toll the running of the statute of limitations. Mathis v. United States, supra, 183 Ct. Cl. at 147, 391 F. 2d at 939; Kirk v. United States, 164 Ct. Cl. 738, 742-43 (1964); Lipp v. United States, 157 Ct. Cl. 197, 199, 301 F. 2d 674, 675 (1962), cert. denied, 373 U.S. 932 (1963). Plaintiff does not contend otherwise. Therefore, as the plaintiff has conceded with respect to the claim for active duty pay, the petition was filed too late to be considered iby the court. The second and more important issue left for the court’s consideration is whether the plaintiff’s claim for the retirement pay also falls if the claim for active duty pay is barred 'by 28 U.'SjC. § 2501. The question may be stated in this way: May plaintiff bring an action for retirement pay more than 6 years subsequent to the date of his final discharge when his entitlement to retirement depends upon invalidating the discharge ? In an affirmative answer to the foregoing question, plaintiff attempts to draw a distinction between the active duty claim and the retirement claim by arguing that if the discharge is found to be illegal as a matter of law, then he should receive constructive credit for the years still to be served under his last 6-year enlistment contract up to July 9, 1967, at which point he could have retired with more than 20 years of active service to his credit. Thus, since July 9,1967, was the first time he would have been eligible for retirement, it is claimed to be also the first time he could have sued for retirement pay and, therefore, is the date upon which his cause of action for retired pay first accrued for statute of limitations purposes. If all of the plaintiff’s premises are accepted, it is clear that the petition filed in October of 1971 was timely with" }, { "docid": "22793212", "title": "", "text": "from the service. More important, the receipt of credit for the accumulated leave was nothing more than a paperwork transaction. There was no doubt at anytime that plaintiff Sauer had actually accrued the unused annual leave which was the basis for the lump sum claim. The accumulated leave in that case corresponds to the 20 years of service in this case. The court could not have given the plaintiff in Sauer credit for the accumulated leave if he had not actually accumulated it while an employee of the FBI. The situation is the same in the case now before the court. By requiring the plaintiff to challenge his discharge within 6 years of the date it becomes effective, the court is asking the plaintiff to show actual or constructive credit for 20 years of service before he brings the suit and not to seek to raise himself by his own bootstraps by asking first for constructive credit for the lost years of service and then for retirement pay based on that credit, all in the same lawsuit. As the facts now stand, the plaintiff has not served the 20 years required by the statute for retirement. Until he has served or received constructive credit for such service he has no right to the retirement benefits he now seeks. The oral argument was made that this places a burden on a discharged serviceman who doesn’t care to be restored to his position in the service because he is lucky enough to go out and find an equal or higher paying job as in Palmer. In such a case he must nevertheless contest the discharge when, in fact, he stands to gain no monetary recovery since he has no damages for lost pay. Under these circumstances, it is said, he should be allowed to sue for retirement pay at the time he would have retired. The short answer to this idea supporting the proposition that a man should, be permitted to sue at his convenience, for retirement on the basis of time not served, is that if the serviceman is discharged without" }, { "docid": "22793199", "title": "", "text": "the result of a statute (as in the present case). Sauer v. United States, 173 Ct. Cl. 642, 647, 354 F. 2d 302, 304(1965). While it seems clear that plaintiff Kirby could not have sued to receive his retirement benefits in any suit filed prior to the end of enlistment in July 1967 because he did not have 20 years of service, it likewise is clear that if he had successfully brought suit to recover his lost active duty pay within 6 years of his discharge he would automatically have received constructive credit for the time subsequent to his discharge, which would have rounded out the 20 years required for retirement by 10 U.S.C. § 8914, and no suit for retirement would have been necessary. Diamond v. United States, 192 Ct. Cl. 502, 427 F. 2d 1246 (1970). Gearinger v. United States, 188 Ct. Cl. 512, 412 F. 2d 862 (1969). All events required to fix defendant’s liability for the retired pay would thus have taken place within the limitations period. As the matter stands, however, the “all events” requirement to fix defendant’s liability has never transpired so plaintiff’s cause of action for a money judgment for retirement is nonexistent, having never accrued. It is true that entitlement to active duty back pay and retirement pay arise under different sections of the Code and accrue as the result of different events. Nonetheless, as noted above, there is a clear nexus between the two. Where the right to the first is demonstrated, the other may follow as a matter of course. It is the precise nature of this connection which requires further analysis. In pertinent part, 10 U.S.C. §8914 provides: “* * * a regular enlisted member of the Air Force who has at least 20, but less than 30, years of service computed under section 8925 of this title may, upon his request, be retired.” In the past this court has denied a reserve officer the right to retirement benefits under a similar provision (10 U.S.C. § 1331) for failing to complete the qualifying 20 years of service. Montilla v." }, { "docid": "22187191", "title": "", "text": "sense that it continues to exist throughout the serviceman’s period of enlistment. Where civilian employees of the Government are separated, we have held that the claim is not a “continuing” one but accrues at one time, once and for all. Friedman v. United States, 159 Ct. Cl. 1, 9-11, 310 F. 2d 381, 386-87 (1962), cert. denied, 373 U.S. 932 (1963) ; Feldman v. United States, 149 Ct. Cl. 22, 30-32, 181 F. Supp. 393, 399-400 (1960); Middleman v. United States, 91 Ct. Cl. 306 (1940). In military discharge cases we appear to have applied the same rule without much discussion (see Mistretta v. United States, 128 Ct. Cl. 41, 44, 120 F. Supp. 264, 266-67 (1954); Goldstein v. United States, 131 Ct. Cl. 228, 233, 130 F. Supp. 330, 332, cert. denied, 350 U.S. 888 (1955); Webster v. United States, 179 Ct. Cl. 917 (1967)), but we have also assumed, in a case in which it made no difference, that the claim could possibly continue during the life of the enlistment. Kirk v. United States, 164 Ct. Cl. 738, 742-43 (1964). In the present case, as will appear, it does make a difference whether limitations began to run in September 1960, when plaintiff was discharged, or in April 1961, when his enlistment would have expired. We hold, for the reasons given in Friedman and Feldman, supra, that, as in the civilian cases, the “continuing claim” theory is inapplicable and the cause of action accrued all at once upon the plaintiff’s removal. There is no reason for the military rule to differ from that governing civilian employees. The next issue is whether the claim arose upon the discharge on September 26, 1960, or not until the action of the Discharge Review Board (December 21, 1960) or perhaps that of the Correction Board (August 23,1961). The answer flows from tbs recognized, oft-repeated principle that optional administrative remedies do not defer or toll the statute of limitations. We held in Kirk v. United States, supra, 164 Ct. Cl. at 742-43, that resort to the Discharge Review Board is permissive, not mandatory, and" }, { "docid": "22793203", "title": "", "text": "to filing the suit in 1953. Palmer alleged, as does Kirby, that procedural irregularities made his demotion (which he considered a wrongful discharge) invalid. The demotion to a nonhazardous duty position prevented the plaintiff from serving 20 years in the hazardous duty job, which was a prerequisite to receiving the higher hazardous duty retirement benefits. No back pay was claimed. Palmer retired in 1950. The court dismissed the petition on alternate grounds. First, the petition was filed too late: “Any claim 'based on that alleged removal [the demotion] is now barred by the six-year statute of limitations, 28 TJ.S.C. § 2501 (1952 ed.) * * *.”129 Ct. 'Cl. at 326,121 F. Supp. at 645. The second basis for dismissing the petition rested on the plaintiff’s failure to state a cause of action because the pertinent statute in that case required the plaintiff to spend 20 years of actual service in a hazardous duty position. The Palmer court treated the two bases for its decision as being completely independent of one another and there they plainly are, nothing in the opinion implying otherwise. However, we need not treat the facts of this case in precisely the same manner. As discussed before, the issue of when the statute of limitations begins to run, and when a plaintiff has stated a sufficient cause of action, may be interrelated, as here. In addition, this plaintiff does not need to show 20 years of actual service in order to qualify for the retirement benefits he now seeks. In Gearinger v. United States, supra, the court held, in a case where the statute of limitations was not an issue, that a serviceman can receive constructive active duty credit as part of a claim for active duty pay, which fulfills the requirements of the retirement statute. Plaintiff Kirby, however, has neither served the necessary 20 years, nor has he received constructive credit therefor. In effect, the plaintiff’s right to sue for retirement benefits has never accrued and will not accrue until he actually serves the requisite number of years or receives constructive credit for the same by" }, { "docid": "22793215", "title": "", "text": "Cl. 537, 579 (1940). In conclusion, the court finds that plaintiff Kirby has, with respect to the active duty pay claim, filed his suit beyond the period allowed by the statute of limitations. With respect to the claim for retirement pay, the plaintiff has not shown the necessary length of service requisite to ¡bringing such a claim and he cannot obtain constructive credit for the missing years of service by challenging an alleged illegal discharge in the context of this claim for retirement benefits, for he waited too long. The .plaintiff’s motion for summary judgment is denied and the defendant’s cross-motion is granted. The petition is dismissed. Plaintiff served through four continuous re-enllstments except for a break from June 30,1950 to October 9,1950. Davis, Judge, dissenting in part: This limitations problem has occasioned much deliberation, and the result is Judge Bennett’s admirable opinion for the court, carefully keying the present decision to our prior reported rulings, and explaining its rationale. I think that the opinion is consistent with the court’s earlier holdings in the limitations field (except as indicated in note 1, supra). My understanding of the underpinning of Palmer v. United States, 129 Ct. Cl. 322, 121 F. Supp. 643 (1954), and Hames v. United States, 164 Ct. Cl. 746, cert. denied, 377 U.S. 904 (1964), is that a plaintiff suing for retirement pay (military or civilian) cannot go into the lawfulness of an adverse administrative action (removal or demotion) which accrued more than 6 years before commencement of suit if there is some statute indicating that Congress wanted the retired individual to have actually served the number of years required for retirement, or showing that Congress desired a particular administrative body to decide, on a discretionary basis, whether the plaintiff had earned or merited the particular type of retirement. In Palmer the court interpreted the “hazardous duty” retirement statute as requiring at least 20 years actual investigative work, and the opinion also indicated (129 Ct. Cl. at 326, 121 F. Supp. at 645) that under that statute the head of the department and the Civil 'Service Commission had" }, { "docid": "21480371", "title": "", "text": "Council that he was disabled by epilepsy. As plaintiff could not sue for disability retirement pay (which is less than active duty pay) until he was separated from active duty, the earliest a petition could have been brought was on May 10, 1974. Plaintiff Quirk’s petition was not filed until May 8, 1980, only two days short of the expiration of the statute of limitations. See 28 U.S.C. § 2501 (1976). Not only must the claim be filed within six years of accrual but, also, within the applicable period of limitations, a plaintiff must proceed diligently or have his claim barred by laches. The equitable defense of laches stems from the maxim that \"equity aids the vigilant, not those who slumber on their rights” and is designed to promote diligence and prevent enforcement of stale claims. Powell v. Zuckert, 366 F. 2d 634, 636 (D.C. Cir. 1966). Ordinarily, the defense of laches requires proof of lack of diligence by the party against whom the defense is asserted and prejudice to the party asserting the defense. Costello v. United States, 365 U.S. 265, 282-283 (1961); Brundage v. United States, 205 Ct. Cl. 502, 509, 504 F. 2d 1382, 1386 (1974), cert. denied, 421 U. S. 998 (1975). As plaintiffs delay in filing the suit increases, however, * * * the less need there is to search for specific prejudice and the greater the shift to plaintiff of demon strating lack of prejudice. Brundage, 205 Ct. Cl. 509, 504 F. 2d at 1386; Cason II, 200 Ct. Cl. at 431, 471 F. 2d at 1229; Grisham, 183 Ct. Cl. at 663, 392 F. 2d at 983; Gersten v. United States, 176 Ct. Cl. 633, 636, 364 F. 2d 850, 852 (1966). Despite filing on the last day allowed by our six-year statute of limitations (the point at which the burden to show lack of prejudice is greatest on plaintiff), plaintiff has made no effort to demonstrate such lack of prejudice. Meanwhile, defendant has at least noted the fading of witnesses’ memories that has undoubtedly occurred since plaintiffs claim accrued in 1971. See" }, { "docid": "22793213", "title": "", "text": "same lawsuit. As the facts now stand, the plaintiff has not served the 20 years required by the statute for retirement. Until he has served or received constructive credit for such service he has no right to the retirement benefits he now seeks. The oral argument was made that this places a burden on a discharged serviceman who doesn’t care to be restored to his position in the service because he is lucky enough to go out and find an equal or higher paying job as in Palmer. In such a case he must nevertheless contest the discharge when, in fact, he stands to gain no monetary recovery since he has no damages for lost pay. Under these circumstances, it is said, he should be allowed to sue for retirement pay at the time he would have retired. The short answer to this idea supporting the proposition that a man should, be permitted to sue at his convenience, for retirement on the basis of time not served, is that if the serviceman is discharged without having served 20 years, and he is unwilling to protect his right to continue to serve within the reasonable length of time provided by law, then he has no basis for seeking benefits that are supposed to accrue only to those who serve honorably for 20 years. Any other rule than here announced will lead to the filing of stale claims 25 years old, or older, and emasculate the statute of limitations. This is contrary both to law and public policy. Friedman v. United States, 159 Ct. Cl. 1, 11, 310 F. 2d 381, 387-88 (1962). Our statute of limitations is jurisdictional and must be strictly construed to avoid prosecution of stale claims which defendant can be prejudiced in contesting because excessive lapse of time dulls memories, accounts for missing witnesses, and occasions periodic, routine destruction of Government records. Crown Coat Front Co. v. United States, 386 U.S. 503, 517 (1967) ; Feldman v. United States, 149 Ct. Cl. 22, 32, 181 F. Supp. 393, 400 (1960); Dawnic S.S. Corp. v. United States, 90 Ct." }, { "docid": "16043393", "title": "", "text": "while a member of a regular component, the Fleet Reserve, or the Fleet Marine Corps Reserve; and \"(4) he is not entitled, under any other provision of law, to retired pay from an armed force or retainer pay as a member of the Fleet Reserve or the Fleet Marine Corps Reserve. \"(b) Application for retired pay under this section must be made to the Secretary of the military department, or the Secretary of the Treasury, as the case may be, having jurisdiction at the time of application over the armed force in which the applicant is serving or last served. \"(d) The Secretary concerned shall provide for notifying each person who has completed the years of service required for eligibility for retired pay under this chapter. The notice must be sent, in writing, to the person concerned within one year after he has completed that service. \"(e) Notwithstanding section 8301 of title 5, United States Code, the date of entitlement to retired pay under this section shall be the date on which the requirements of subsection (a) have been completed.” 31 U.S.C. § 71a sets forth the limitations period on claims against the United States cognizable by the General Accounting Office. At the time plaintiff filed his application for retired pay with the Army, the limitations period was 10 years. On January 2, 1975, Congress amended the statute to reduce the limitations period to 6 years. Pub. L. 93-604, § 801, 88 Stat. 1965. The reduced limitations period became effective on July 2,1975, id., and thus barred plaintiffs claim which was not received by GAO until October 18,1976. While Oceanic S.S. Co. was a contract case, the same standard is applicable when the Government’s liability arises from a statute as it does here. Kirby v. United States, 201 Ct. Cl. 527, 533 (1973), cert. denied 417 U.S. 919 (1974); Sauer v. United States, 173 Ct. Cl. 642, 647, 354 F.2d 302, 304 (1965). Prior to the Act of August 13,1968, Pub. L. 90-485 § 2,82 Stat. 751, codified at 10 U.S.C. § 1331(e), the effective date of retirement under 10" }, { "docid": "22187190", "title": "", "text": "Per Curiam: This case concerns the running of limitations on a claim for illegal discharge from military service. Plaintiff (who re-enlisted in the Army on April 9,1958, for three years) was discharged on September 26, 1960, for unfitness, with an undesirable discharge. He sought review by the Army Discharge Review Board which denied his appeal on December 21, 1960. Later he went to the Army Correction Board which rejected his application, without a hearing, on August 23,1961. The petition in this court claims that the discharge was unlawful and that plaintiff is entitled to the unpaid pay and allowances accruing after the date of his discharge. The defendant moves to dismiss on the ground that the claim is barred by the six-year statute of limitations, 28 U.S.C. § 2501 (1964). The first question is whether this type of claim for an illegal military discharge accrues at one time — i.e., at the time of removal or at the end of the administrative proceedings relating to the removal — or is a “continuing claim” in the sense that it continues to exist throughout the serviceman’s period of enlistment. Where civilian employees of the Government are separated, we have held that the claim is not a “continuing” one but accrues at one time, once and for all. Friedman v. United States, 159 Ct. Cl. 1, 9-11, 310 F. 2d 381, 386-87 (1962), cert. denied, 373 U.S. 932 (1963) ; Feldman v. United States, 149 Ct. Cl. 22, 30-32, 181 F. Supp. 393, 399-400 (1960); Middleman v. United States, 91 Ct. Cl. 306 (1940). In military discharge cases we appear to have applied the same rule without much discussion (see Mistretta v. United States, 128 Ct. Cl. 41, 44, 120 F. Supp. 264, 266-67 (1954); Goldstein v. United States, 131 Ct. Cl. 228, 233, 130 F. Supp. 330, 332, cert. denied, 350 U.S. 888 (1955); Webster v. United States, 179 Ct. Cl. 917 (1967)), but we have also assumed, in a case in which it made no difference, that the claim could possibly continue during the life of the enlistment. Kirk v. United" }, { "docid": "22793214", "title": "", "text": "having served 20 years, and he is unwilling to protect his right to continue to serve within the reasonable length of time provided by law, then he has no basis for seeking benefits that are supposed to accrue only to those who serve honorably for 20 years. Any other rule than here announced will lead to the filing of stale claims 25 years old, or older, and emasculate the statute of limitations. This is contrary both to law and public policy. Friedman v. United States, 159 Ct. Cl. 1, 11, 310 F. 2d 381, 387-88 (1962). Our statute of limitations is jurisdictional and must be strictly construed to avoid prosecution of stale claims which defendant can be prejudiced in contesting because excessive lapse of time dulls memories, accounts for missing witnesses, and occasions periodic, routine destruction of Government records. Crown Coat Front Co. v. United States, 386 U.S. 503, 517 (1967) ; Feldman v. United States, 149 Ct. Cl. 22, 32, 181 F. Supp. 393, 400 (1960); Dawnic S.S. Corp. v. United States, 90 Ct. Cl. 537, 579 (1940). In conclusion, the court finds that plaintiff Kirby has, with respect to the active duty pay claim, filed his suit beyond the period allowed by the statute of limitations. With respect to the claim for retirement pay, the plaintiff has not shown the necessary length of service requisite to ¡bringing such a claim and he cannot obtain constructive credit for the missing years of service by challenging an alleged illegal discharge in the context of this claim for retirement benefits, for he waited too long. The .plaintiff’s motion for summary judgment is denied and the defendant’s cross-motion is granted. The petition is dismissed. Plaintiff served through four continuous re-enllstments except for a break from June 30,1950 to October 9,1950. Davis, Judge, dissenting in part: This limitations problem has occasioned much deliberation, and the result is Judge Bennett’s admirable opinion for the court, carefully keying the present decision to our prior reported rulings, and explaining its rationale. I think that the opinion is consistent with the court’s earlier holdings in the limitations" }, { "docid": "22793198", "title": "", "text": "respect to the claim for retirement pay. But, note that plaintiff’s pyramid of presumptions is based upon voiding the 1963 discharge over 8 years after receiving it. In an effort to measure the merits of the plaintiff’s thesis, attention should first be turned to the general rule found in Oceanic S.S. Co. v. United States, 165 Ct. Cl. 217, 225 (1964), for determining precisely when a cause of action accrues for statute of limitation purposes. There the court held: A claim against the United States first accrues on the date when all the events have occurred which fix the liability of the Government and entitle the claimant to institute an action. * * * [cites omitted]. At 218 the court said, “* * * for this court no cause of action accrues before the claimant can bring a suit for money judgment.” See also, Nager Elec. Co. v. United States, 177 Ct. Cl. 234, 252, 368 F. 2d 847, 859 (1966). These were contract cases. The same standard applies where the Government’s obligation arises as the result of a statute (as in the present case). Sauer v. United States, 173 Ct. Cl. 642, 647, 354 F. 2d 302, 304(1965). While it seems clear that plaintiff Kirby could not have sued to receive his retirement benefits in any suit filed prior to the end of enlistment in July 1967 because he did not have 20 years of service, it likewise is clear that if he had successfully brought suit to recover his lost active duty pay within 6 years of his discharge he would automatically have received constructive credit for the time subsequent to his discharge, which would have rounded out the 20 years required for retirement by 10 U.S.C. § 8914, and no suit for retirement would have been necessary. Diamond v. United States, 192 Ct. Cl. 502, 427 F. 2d 1246 (1970). Gearinger v. United States, 188 Ct. Cl. 512, 412 F. 2d 862 (1969). All events required to fix defendant’s liability for the retired pay would thus have taken place within the limitations period. As the matter stands," }, { "docid": "22793201", "title": "", "text": "United States, 198 Ct. Cl. 48, 457 F. 2d 978 (1972). The same unequivocal rule applies to an Air Force enlisted man under 10 U.S.C. § 8914. The plaintiff lias not served the required length of time to become eligible for the retirement benefits he now seeks. He attempts to avoid this obstacle by asking this court to re-examine and invalidate the May 1963 discharge proceedings in the context of this retirement claim, thereby giving him constructive credit for the years of active duty he did not serve between May 1963 and July 1967. Such a re-examination is clearly barred by the statute of limitations with respect to the active duty claim. As a result, the court does not feel that it has the power to hold otherwise in the context of the retirement claim. The stumbling block comes from the fact that once this plaintiff was officially discharged from the Air Force, he lost the right to earn future active duty pay and, since he had not, at that moment, completed 20 years of service, the future right to receive retirement pay and allowances lapsed as well. The plaintiff had 6 years in which to challenge in court the legality of his discharge in order to protect his right to fulfill his enlistment commitment and obtain the needed years of service for retirement. This he did not do and cannot be allowed to do at this time through the vehicle of the retirement claim. The one rests on the other like a house on a foundation; without the foundation, the house will not stand. In reaching this result, the court is not stating a new rule. Hames v. United States, 164 Ct. Cl. 746, cert. denied, 377 U.S. 904 (1964); Palmer v. United States, 129 Ct. Cl. 322, 121 F. Supp. 643 (1954). In Palmer, for instance, the court reached a similar conclusion where the plaintiff was seeking to obtain the difference between the retirement pay he would have received had he not allegedly been wrongfully demoted in 1944 from a hazardous duty position more than 6 years prior" }, { "docid": "22793219", "title": "", "text": "with some hesitation, because, unlike the majority, I do not see the military retirement statutes in the same light as the “hazardous duty” retirement legislation 'in Palmer or the statutory requirement in Homes that creditable service be actually served. I would avoid holding that in the military retirement system Congress has laid down the Procrustean requirement that the 20 years (or more) be actually served in all cases, except where suit is brought within 6 years of the adverse action. Congress did not say explicitly that the service had to be “actual” in all instances, and we have some leeway in inferring an intention to recognize “constructive” service where appropriate. The hypothetical case which mainly troubles me is that of a serviceman who has been told by an official that he has enough years or points or credits for retirement, and, on the basis of that assurance, does not sue to set aside an early adverse action because he thinks that, apart from that adverse action, he still has enough eligibility for retirement; on retirement he suddenly discovers that the earlier representation was mistaken and that, in order to be eligible at all, he does have to overturn the prior adverse action. Under our recent decisions in Montilla v. United States, 198 Ct. Cl. 48, 457 F. 2d 978 (1972) and Parker v. United States, 198 Ct. Cl. 661, 461 F. 2d 806 (1972), the claimant could probably not say that the Government was estopped. If we apply the majority’s rule, it is hard to see how an exception could be made for this potential case; limitations is not a doctrine like laches which can be tailored to fit particular circumstances. To avoid such possible injustices, it seems to me preferable to hold that the claim for retirement pay does not accrue until retirement, and to rely on the equitable principles of laches — which apply to military pay cases, Cason v. United States, 200 Ct. Cl. 424, 471 F. 2d 1225 (1973) — to fend off stale claims and stale issues. A plaintiff who needlessly waited 20 years or" }, { "docid": "22793200", "title": "", "text": "however, the “all events” requirement to fix defendant’s liability has never transpired so plaintiff’s cause of action for a money judgment for retirement is nonexistent, having never accrued. It is true that entitlement to active duty back pay and retirement pay arise under different sections of the Code and accrue as the result of different events. Nonetheless, as noted above, there is a clear nexus between the two. Where the right to the first is demonstrated, the other may follow as a matter of course. It is the precise nature of this connection which requires further analysis. In pertinent part, 10 U.S.C. §8914 provides: “* * * a regular enlisted member of the Air Force who has at least 20, but less than 30, years of service computed under section 8925 of this title may, upon his request, be retired.” In the past this court has denied a reserve officer the right to retirement benefits under a similar provision (10 U.S.C. § 1331) for failing to complete the qualifying 20 years of service. Montilla v. United States, 198 Ct. Cl. 48, 457 F. 2d 978 (1972). The same unequivocal rule applies to an Air Force enlisted man under 10 U.S.C. § 8914. The plaintiff lias not served the required length of time to become eligible for the retirement benefits he now seeks. He attempts to avoid this obstacle by asking this court to re-examine and invalidate the May 1963 discharge proceedings in the context of this retirement claim, thereby giving him constructive credit for the years of active duty he did not serve between May 1963 and July 1967. Such a re-examination is clearly barred by the statute of limitations with respect to the active duty claim. As a result, the court does not feel that it has the power to hold otherwise in the context of the retirement claim. The stumbling block comes from the fact that once this plaintiff was officially discharged from the Air Force, he lost the right to earn future active duty pay and, since he had not, at that moment, completed 20 years of" }, { "docid": "22793209", "title": "", "text": "is nothing harsh in this rule. At the moment a serviceman is discharged under conditions like these, he knows that he has not fulfilled the requirements necessary for retirement. It is incumbent upon him at that point to protect his right to serve further by timely attacking the discharge. He could do this by a suit for active duty back pay, reinstatement, mandamus, or declaratory judgment in an appropriate court. A timely challenge in this manner to the discharge would not accrue a cause of action for a 20-year retirement immediately but would make it foreseeable by protecting the opportunity to earn it, which was not done here. Prior to enactment of Pub. L. No. 92-415, on August 29, 1972, 86 Stat. 652, plaintiff could have sought declaratory judgment or restoration to his position only in the United States District Court and recovered back pay there for less than $10,000. Said Act, however, gave reinstatement jurisdiction to the Court of Claims “as an incident of and collateral to” a money judgment within its general jurisdiction to enter money judgments under the Tucker Act. This court does not have declaratory judgment jurisdiction except in renegotiation cases pursuant to Pub. L. No. 92-41, § 3, 85 Stat. 97, 98 (1971). Lykes Bros. S.S. Co. v. United States, 198 Ct. Cl. 312, 459 F. 2d 1393 (1972). The Court of Claims does not otherwise have general equity powers or declaratory judgment authority. United States v. King, 395 U.S. 1 (1969). These Acts did not affect the statute of limitations pertinent here. For instance, we cannot restore a discharged Government employee to his job if his claim for back pay is barred by the statute of limitations. Nor can we enter a declaratory judgment that plaintiff Kirby was wrongfully discharged when the time has elapsed within which we could give -him a money judgment for back pay. To do so would be, in effect, reinstating plaintiff to his position for several years for retirement pay purposes, which, for reasons noted above, is beyond our authority. As stated in United States v. King, supra, before" }, { "docid": "22793216", "title": "", "text": "field (except as indicated in note 1, supra). My understanding of the underpinning of Palmer v. United States, 129 Ct. Cl. 322, 121 F. Supp. 643 (1954), and Hames v. United States, 164 Ct. Cl. 746, cert. denied, 377 U.S. 904 (1964), is that a plaintiff suing for retirement pay (military or civilian) cannot go into the lawfulness of an adverse administrative action (removal or demotion) which accrued more than 6 years before commencement of suit if there is some statute indicating that Congress wanted the retired individual to have actually served the number of years required for retirement, or showing that Congress desired a particular administrative body to decide, on a discretionary basis, whether the plaintiff had earned or merited the particular type of retirement. In Palmer the court interpreted the “hazardous duty” retirement statute as requiring at least 20 years actual investigative work, and the opinion also indicated (129 Ct. Cl. at 326, 121 F. Supp. at 645) that under that statute the head of the department and the Civil 'Service Commission had substantial discretion to determine whether the employee deserved that kind of retirement. In Hames, there was a statute flatly disallowing credit “for any period of separation from the service in excess of three calendar days”, which we interpreted as requiring the Civil ¡Service Commission to leave out of account all periods of removal unless the employee had brought a timely action to set aside the removal as alleged. Eather than being based solely on limitations, both Palmer and Homes rested on a combination of limitations together with failure to state a claim for relief — i.e., the substantive statute which the Government invoked as a defense prevented the claimant 'from having a proper claim for retirement pay unless he 'had timely brought suit to overturn the prior adverse administrative action. Under that rule, the question in each case is whether there is any substantive legislation or regulation (apart from the statute of limitations) which suggests that Congress would want the claimant not to wait 'until his retirement to test some prior adverse action. As I" }, { "docid": "22793202", "title": "", "text": "service, the future right to receive retirement pay and allowances lapsed as well. The plaintiff had 6 years in which to challenge in court the legality of his discharge in order to protect his right to fulfill his enlistment commitment and obtain the needed years of service for retirement. This he did not do and cannot be allowed to do at this time through the vehicle of the retirement claim. The one rests on the other like a house on a foundation; without the foundation, the house will not stand. In reaching this result, the court is not stating a new rule. Hames v. United States, 164 Ct. Cl. 746, cert. denied, 377 U.S. 904 (1964); Palmer v. United States, 129 Ct. Cl. 322, 121 F. Supp. 643 (1954). In Palmer, for instance, the court reached a similar conclusion where the plaintiff was seeking to obtain the difference between the retirement pay he would have received had he not allegedly been wrongfully demoted in 1944 from a hazardous duty position more than 6 years prior to filing the suit in 1953. Palmer alleged, as does Kirby, that procedural irregularities made his demotion (which he considered a wrongful discharge) invalid. The demotion to a nonhazardous duty position prevented the plaintiff from serving 20 years in the hazardous duty job, which was a prerequisite to receiving the higher hazardous duty retirement benefits. No back pay was claimed. Palmer retired in 1950. The court dismissed the petition on alternate grounds. First, the petition was filed too late: “Any claim 'based on that alleged removal [the demotion] is now barred by the six-year statute of limitations, 28 TJ.S.C. § 2501 (1952 ed.) * * *.”129 Ct. 'Cl. at 326,121 F. Supp. at 645. The second basis for dismissing the petition rested on the plaintiff’s failure to state a cause of action because the pertinent statute in that case required the plaintiff to spend 20 years of actual service in a hazardous duty position. The Palmer court treated the two bases for its decision as being completely independent of one another and there they plainly" }, { "docid": "22793197", "title": "", "text": "years subsequent to the date of his final discharge when his entitlement to retirement depends upon invalidating the discharge ? In an affirmative answer to the foregoing question, plaintiff attempts to draw a distinction between the active duty claim and the retirement claim by arguing that if the discharge is found to be illegal as a matter of law, then he should receive constructive credit for the years still to be served under his last 6-year enlistment contract up to July 9, 1967, at which point he could have retired with more than 20 years of active service to his credit. Thus, since July 9,1967, was the first time he would have been eligible for retirement, it is claimed to be also the first time he could have sued for retirement pay and, therefore, is the date upon which his cause of action for retired pay first accrued for statute of limitations purposes. If all of the plaintiff’s premises are accepted, it is clear that the petition filed in October of 1971 was timely with respect to the claim for retirement pay. But, note that plaintiff’s pyramid of presumptions is based upon voiding the 1963 discharge over 8 years after receiving it. In an effort to measure the merits of the plaintiff’s thesis, attention should first be turned to the general rule found in Oceanic S.S. Co. v. United States, 165 Ct. Cl. 217, 225 (1964), for determining precisely when a cause of action accrues for statute of limitation purposes. There the court held: A claim against the United States first accrues on the date when all the events have occurred which fix the liability of the Government and entitle the claimant to institute an action. * * * [cites omitted]. At 218 the court said, “* * * for this court no cause of action accrues before the claimant can bring a suit for money judgment.” See also, Nager Elec. Co. v. United States, 177 Ct. Cl. 234, 252, 368 F. 2d 847, 859 (1966). These were contract cases. The same standard applies where the Government’s obligation arises as" }, { "docid": "21480370", "title": "", "text": "Regarding plaintiffs claim for other damages based on a negligent failure to detect plaintiff s alleged condition, that claim sounds in tort and is similarly beyond our jurisdiction. Plaintiffs claim for disability retirement, as we discuss below, is barred by a failure to diligently pursue his remedy in this court. It is well established that a claim for disability retirement under 10 U.S.C. § 1201 et seq. (1970) accrues when a proper board has considered a disability claim and denies it or when there is a refusal to convene a proper board at a claimant’s request. E.g., Friedman v. United States, 159 Ct. Cl. 1, 24-25, 310 F. 2d 381, 395-396 (1962), cert. denied sub nom. Lipp v. United States, 373 U. S. 932 (1963). In the present case, the final board action of the Navy regarding plaintiffs claim for disability retirement occurred upon the Physical Review Council’s affirmation on April 17, 1974, of the March 20, 1974, PEB decision. That decision allowed plaintiff to be discharged without disability benefits despite plaintiffs arguments to the Council that he was disabled by epilepsy. As plaintiff could not sue for disability retirement pay (which is less than active duty pay) until he was separated from active duty, the earliest a petition could have been brought was on May 10, 1974. Plaintiff Quirk’s petition was not filed until May 8, 1980, only two days short of the expiration of the statute of limitations. See 28 U.S.C. § 2501 (1976). Not only must the claim be filed within six years of accrual but, also, within the applicable period of limitations, a plaintiff must proceed diligently or have his claim barred by laches. The equitable defense of laches stems from the maxim that \"equity aids the vigilant, not those who slumber on their rights” and is designed to promote diligence and prevent enforcement of stale claims. Powell v. Zuckert, 366 F. 2d 634, 636 (D.C. Cir. 1966). Ordinarily, the defense of laches requires proof of lack of diligence by the party against whom the defense is asserted and prejudice to the party asserting the defense." } ]

[ { "docid": "23564908", "title": "", "text": "appellant contested his case. Only one of the cases involved the use of a prohibited substance (marihuana); appellant used cocaine. In four of the eight cases, the accused was sentenced to a dishonorable discharge; appellant received a had-conduct discharge. All eight cases were tried in a different country and a different year from appellant’s case. No evidence of the extenuating, mitigating, or aggravating circumstances that may have been presented in those cases is apparent in the promulgating orders. . Even if appellant could demonstrate that drug sentences are more severe in the military, as a whole, than in civilian jurisdictions, we are satisfied that such differences can be readily justified by an urgent necessity in the military that is simply not present in the civilian community. See Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983); Schlesinger v. Councilman, 420 U.S. 738, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975); Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974); Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842 (1953); Committee for GI Rights v. Calla-way, 518 F.2d 466 (D.C.Cir.1975); and Murray v. Haldeman 16 M.J. 74 (C.M.A.1983). EVERETT, Chief Judge (concurring): To perform their statutory task of determining sentence appropriateness, the members of a Court of Military Review must know something about the range of sentences typically adjudged for certain offenses. To some extent, they will develop this knowledge by reviewing hundreds of court-martial records; and we must largely rely on these judges to decide how much they need to supplement their experience by receiving additional information about sentences imposed in cases other than those immediately before them for review. Only when another ease — for example, that of an accomplice — is “closely related” to that being reviewed, have we ruled that the sentence adjudged in the earlier case must be considered in determining an “appropriate” sentence. Cf. United States v. Snelling, 14 M.J. 267, 268 (C.M.A.1982), quoting United States v. Olinger, 12 M.J. 458, 460 (C.M.A.1982). The majority opinion — although it does not require the Courts of" } ]

[ { "docid": "21593414", "title": "", "text": "Auth. v. Midkiff, 467 U.S. 229, 236, 104 S.Ct. 2321, 2327, 81 L.Ed.2d 186 (1984). To abstain under Pullman, a federal court must find all three of the following factors: first, the complaint touches a sensitive area of social policy upon which the federal courts ought not to enter unless no alternative to its adjudication is open; second, a definitive ruling on the state issue would terminate the controversy; and third, the possibly determinative issue of state law is doubtful. McMillan v. Goleta Water Dist., 792 F.2d 1453, 1458 (9th Cir.1986), cert. denied, 480 U.S. 906, 107 S.Ct. 1348, 94 L.Ed.2d 519 (1987). In first amendment cases, the first of these factors will almost never be present because the guarantee of free expression is always an area of particular federal concern. See J-R Distribs. v. Eikenberry, 725 F.2d 482, 488 (9th Cir.1984), rev’d on other grounds sub nom. Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985). Moreover, abstention would “ ‘force the plaintiff who has commenced a federal action to suffer the delay of state court proceedings [and] effect the impermissible chilling of the very constitutional right he seeks to protect.’ ” Id. at 488 (quoting Zwickler v. Koota, 389 U.S. 241, 252, 88 S.Ct. 391, 397, 19 L.Ed.2d 444 (1967)). This court ruled on a very similar abstention question in Polykojf, concerning over-breadth challenges to the previous version of the Arizona obscenity statute. The court found that the abstention question was controlled by Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985). See Polykoff, 816 F.2d at 1334. In Brockett, three concurring Justices argued that the district court should have abstained from hearing a constitutional challenge to a four-day-old state obscenity law. Brockett, 472 U.S. at 507-10, 105 S.Ct. at 2803-05 (O’Connor, J., concurring). Five Justices, however, were not persuaded and reached the merits of the challenge. Id. at 493-507, 105 S.Ct. at 2796-2804. We are satisfied that the district court did not abuse its discretion in declining to abstain under Pullman. This case does not" }, { "docid": "13526908", "title": "", "text": "also deserve the opportunity to bring the legal collateral impacts of sex offender convictions to the attention of the sentencing authority via an unsworn statement. In the instant case, appellant is arguably correct in stating that he may have to register with the Arizona authorities as a sex offender. Although appellant was convicted by another jurisdiction (i.e., U.S. military), Arizona law requires him to register as a sex offender if the crime of which he was convicted would have required registration if committed in Arizona. Ariz.Rev.Stat. § 13-3821A (1998). The indecent assaults by themselves would not require appellant’s registration because the victims were over the age of eighteen years. See Ariz.Rev.Stat. § 13-3821A3 (1998). Under the Arizona statute, however, if the burglaries were committed with a sexual motivation, appellant may be required to register by the judge sentencing the sex offender. See Ariz.Rev. Stat. § 13-3821B (1998). Because of procedural differences between how the military and Arizona charge offenses (i.e., Ariz.Rev. Stat. § 13-118 (1995) requires the prosecutor, in a non-sex offense case, to file a special allegation of sexual motivation if he desires to impose a registration requirement), appellant’s registration requirement is not definitively established. Nevertheless, there was at least a reasonable basis for appellant to assert such a requirement in his unsworn statement. Thus, we find that the military judge abused her discretion by being unduly restrictive in prohibiting appellant from bringing this matter to the attention of the sentencing authority during his unsworn statement. See Britt, 48 M.J. at 234. We have considered the matters submitted by the appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.1982), and find them to be without merit. The findings of guilty are affirmed. Reassessing the sentence on the basis of the error noted, the entire record, and United States v. Sales, 22 M.J. 305 (C.M.A.1986), the court affirms only so much of the sentence as provides for a bad-conduct discharge, confinement for nine months, forfeiture of all pay and allowances, and reduction to Private E1. Senior Judge TOOMEY and Judge CARTER concur. . Statutes of this sort are" }, { "docid": "18680892", "title": "", "text": "purpose, and this one does. Appellant also attacks the order as being overly broad, referring to the implicit limitations on sexual contact with civilians having no connection with the military and the requirement to notify all medical personnel. Because appellant is not charged with violating the order in this way, we need not consider these aspects here. Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985). In this case, the military context is obvious: Appellant is not entitled to relief based on other, hypothetical conduct. See Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974). Finally, we consider whether this military order interfered with constitutionally-protected private affairs of appellant. First, we note that forcible sodomy is not constitutionally-protected conduct. Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed. 2d 140 (1986). Also, the First Amendment and related concerns of privacy apply differently to the military community because of the unique mission and need for internal discipline. Parker v. Levy, supra, and United States v. Hoard, 12 MJ 563 (ACMR 1981), pet. denied, 13 MJ 31 (1982). The consequence is that the armed forces may constitutionally prohibit or regulate conduct which might be permissible elsewhere. Thus, the military can require service-members to be inoculated against diseases, even if this violates the member’s religious beliefs. United States v. Chadwell, 36 CMR 741 (NBR 1965); United States v. Jordan, 30 CMR 424(ABR), pet. denied, 12 USCMA 727, 30 CMR 417 (1960). It may prohibit the association of military trainees with others passing through a reception station, United States v. Hoard, supra, and regulate relationships between officers and enlisted personnel, United States v. Johanns, 20 MJ 155 (CMA), cert. denied, 474 U.S. 850, 106 S.Ct. 147, 88 L.Ed.2d 122 (1985). Under the circumstances here, we view these restrictions on appellant’s sexual activity to be of the same ilk, and we detect no constitutional infirmity therein. The decision of the United States Air Force Court of Military Review is affirmed. Chief Judge EVERETT and Judge SULLIVAN concur. . He was sentenced to a" }, { "docid": "16715835", "title": "", "text": "the majority tells us, the choice between the 1988 and 1991 versions of the guidelines had no effect on Seacott’s sentence, which may explain why the parties paid the subject no heed despite cases such as Bader and Schnell inviting attention to the status of § 3553(a)(4). Today the 1993 guidelines are in force; do these differ materially from the rules on the books when Seacott defrauded the credit union? Will that difference affect the sentence? (Small differences produce overlapping ranges, and the same sentence is possible under each version.) Olano emphasizes that Rule 52(b) permits courts of appeals to disregard even plain and prejudicial errors. 113 S.Ct. at 1778-79. Thus even if the application of § 3558(a)(4) was both clearly inappropriate and prejudicial to Seacott, we must act prudently in deciding whether to address the question. Issuing an opinion on the constitutionality of an Act of Congress, when the parties have not given us an adversarial presentation on the issue, is not prudent. The United States Attorney filed a brief conceding that § 3553(a)(4) is unconstitutional, apparently believing that we have so held in Kopshever — a case that carefully reserved decision on the issue, 6 F.3d at 1222 n. 6. A concession based on a misreading of our precedents means that we have not had the benefit of an adversarial presentation.- Decisions reached without the benefit of the parties’ views are more likely to overlook important matters. (The majority does not mention the considerations I discuss below.) The prosecutor’s concession may justify instructing the district court to use the 1988 version of the guidelines on remand; it does not justify a “holding” that the law violates the Constitution. Instead of finding ways to express a constitutional verdict on § 3553(a)(4), we should be searching for ways to avoid decision. Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 154, 89 L.Ed. 101 (1944); Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 501, 105 S.Ct. 2794, 2800, 86 L.Ed.2d 394 (1985). Constitutional adjudication is a last resort. Justice Brandeis’s concurring opinion in Ashwander v. TVA," }, { "docid": "21593415", "title": "", "text": "action to suffer the delay of state court proceedings [and] effect the impermissible chilling of the very constitutional right he seeks to protect.’ ” Id. at 488 (quoting Zwickler v. Koota, 389 U.S. 241, 252, 88 S.Ct. 391, 397, 19 L.Ed.2d 444 (1967)). This court ruled on a very similar abstention question in Polykojf, concerning over-breadth challenges to the previous version of the Arizona obscenity statute. The court found that the abstention question was controlled by Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985). See Polykoff, 816 F.2d at 1334. In Brockett, three concurring Justices argued that the district court should have abstained from hearing a constitutional challenge to a four-day-old state obscenity law. Brockett, 472 U.S. at 507-10, 105 S.Ct. at 2803-05 (O’Connor, J., concurring). Five Justices, however, were not persuaded and reached the merits of the challenge. Id. at 493-507, 105 S.Ct. at 2796-2804. We are satisfied that the district court did not abuse its discretion in declining to abstain under Pullman. This case does not meet the first Pullman test because it involves an issue of particular federal concern. Moreover, in Polykoff this court, following Brockett, found abstention to be inappropriate in a first amendment case, even where the state court had not had an opportunity to narrow the statute. B. Cable Television Exemption The Arizona statute exempts cable television from the coverage of the obscenity statute. The exemption provides: “The provisions of this chapter shall not apply to broadcasts or telecasts through facilities licensed under the Federal Communications Act or Title 9, chapter 5, Article 1.1.” Ariz.Rev.Stat. § 13-3511 (Supp.1987). Our initial inquiry is whether the exemption should be judged by strict scrutiny or by the rational basis test. In M.S. News Co. v. Casado, 721 F.2d 1281 (10th Cir.1983), the Tenth Circuit addressed the proper test to apply to exemptions from obscenity statutes. The court found that a classification distinguishing between commercial and noncommercial enterprises in an ordinance prohibiting the promotion of sexually oriented materials to minors should be judged by the rational basis test. Id. at 1291." }, { "docid": "12214069", "title": "", "text": "court that the appellants have proper standing to launch a facial challenge against the 2000 Festival Ordinance because the appellants seek to engage in constitutionally protected speech that the 2000 Festival Ordinance attempts to restrict. See Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504, 105 S.Ct. 2794, 2802, 86 L.Ed.2d 394 (1985). B. Mootness There must be a “present, live controversy in order to ‘avoid advisory opinions on abstract propositions of law.’ ” Church of Scientology Flag Serv. Org., Inc. v. City of Clearwater (“Church of Scientology I”), 777 F.2d 598, 604 (11th Cir.1985) (quoting Hall v. Beals, 396 U.S. 45, 48, 90 S.Ct. 200, 201-02, 24 L.Ed.2d 214 (1969) (per curiam)). “ ‘[W]hen the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome,’ ” the case has become moot. County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979) (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1951, 23 L.Ed.2d 491 (1969)). As the Supreme Court recently noted, “[t]he underlying concern is that, when the challenged conduct ceases such that ‘ “there is no reasonable expectation that the wrong will be repeated,” ’ then it becomes impossible for the court to grant ‘ “any effectual relief whatever” to [the] prevailing party.’ ” City of Erie v. Pap’s A.M, — U.S. —, 120 S.Ct. 1382, 1390, 146 L.Ed.2d 265 (2000) (citations omitted) (alteration in original). When a case has become moot, we do not consider the merits presented, but instead vacate the judgments below with directions to dismiss even if a controversy did exist at the time the district court rendered its decision. See United States v. Munsingwear, Inc., 340 U.S. 36, 39-40, 71 S.Ct. 104, 106-07, 95 L.Ed. 36 (1950). When a subsequent law brings the existing controversy to an end “ ‘the case becomes moot and should be treated accordingly.’ ” Church of Scientology I, 777 F.2d at 605 (concluding that the issue of an ordinance’s validity was moot when the ordinance had been repealed by the enactment" }, { "docid": "12214068", "title": "", "text": "unconstitutional and make clearer the remaining portions of the festival ordinance. DISCUSSION I. JUSTICIABILITY As an initial matter we must address the question of justiciability. Article III of the Constitution requires an actual case or controversy to support the exercise of judicial power. “Three strands of justiciability doctrine — standing, ripeness, and mootness — play an important role in the determination of whether the plaintiff-appellants’ case against the [City] presents an Article III case or controversy.” Socialist Workers Party v. Leahy, 145 F.3d 1240, 1244 (11th Cir.1998). A. Standing Citing City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 755-56, 108 S.Ct. 2138, 2143, 100 L.Ed.2d 771 (1988) and United States v. Gilbert, 130 F.3d 1458, 1462 (11th Cir.1997), the district court found that the appellants had standing to bring a facial challenge against the 1994 Festival Ordinance because they were subject to the licensing ordinance, they alleged that it provided the government unbridled discretion, and the ordinance could lead to content-based discrimination of constitutionally protected speech. Similarly, we agree with the district court that the appellants have proper standing to launch a facial challenge against the 2000 Festival Ordinance because the appellants seek to engage in constitutionally protected speech that the 2000 Festival Ordinance attempts to restrict. See Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504, 105 S.Ct. 2794, 2802, 86 L.Ed.2d 394 (1985). B. Mootness There must be a “present, live controversy in order to ‘avoid advisory opinions on abstract propositions of law.’ ” Church of Scientology Flag Serv. Org., Inc. v. City of Clearwater (“Church of Scientology I”), 777 F.2d 598, 604 (11th Cir.1985) (quoting Hall v. Beals, 396 U.S. 45, 48, 90 S.Ct. 200, 201-02, 24 L.Ed.2d 214 (1969) (per curiam)). “ ‘[W]hen the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome,’ ” the case has become moot. County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979) (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1951, 23 L.Ed.2d 491 (1969)). As the" }, { "docid": "369532", "title": "", "text": "overly broad. See, e.g., Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985). There, the Supreme Court held that partial, rather than facial, invalidation was the required remedy in dealing with a state moral-nuisance statute which infringed on constitutionally protected speech. However, in that case it was feasible to sever the valid from the invalid portions of the statute by excising from the statute the word “lust.” On the other hand, I see no reasonable way to divide Article 1139 between that portion which is constitutionally overbroad and that portion, whatever its scope, which is constitutionally permissible. For us to attempt to rewrite this regulation would arrogate to this Court a power and responsibility which belong to the Executive Branch. In view of the unconstitutionality of Article 1139, it cannot properly be enforced against appellant or against anyone else. Thus, Reed’s pleas of guilty were improvident because under no circumstances could he be lawfully convicted for disobeying this Regulation. For this reason, as well as those expressed in the principal opinion, the findings of guilty on this Charge must be set aside and the Charge and its specification dismissed. . Judge Cox noted his agreement with my view. 22 M.J. 35, 38 n. 3. . Conceivably Article 1139 was only hortatory and was intended to describe a moral obligation, rather than to impose a legal duty enforceable by criminal sanctions. . In Secretary of State of Maryland v. Joseph H. Munson Company, Inc., 467 U.S. 947, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984), the Supreme Court observed: [T]he Court has allowed a party to assert the rights of another without regard to the ability of the other to assert his own claims and \" ‘with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.' ” [Citations omitted] (\"Given a case or controversy, a litigant whose own activities are unprotected may nevertheless challenge a statute by showing that it substantially abridges the First Amendment rights of other parties" }, { "docid": "9363606", "title": "", "text": "the statute is a constitutional limitation on nude dancing. The plaintiffs assert an additional challenge to section 728.5 on the grounds that it is unconstitutionally vague and over-broad. According to the overbreadth doctrine, “an individual whose own speech or conduct may be prohibited is permitted to challenge a statute on its face ‘because it also threatens others not before the court — those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid.’ ” Board of Airport Comm’rs v. Jews for Jesus, Inc., 482 U.S. 569, 574, 107 S.Ct. 2568, 96 L.Ed.2d 500 (1987) (quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985)). Although we have determined that the amendments are constitutional in their prohibition of nude dancing in juice bars, the plaintiffs submit that we must nevertheless strike them down because they may chill speech in other constitutionally protected forums. Specifically, the plaintiffs point to the application of the recent amendments to “plaee[s] of business required to obtain a sales tax permit,” arguing that liability to collect sales tax is not an accurate predictor of criminal secondary effects. A finding of overbreadth is “strong medicine” to be used “sparingly and only as a last resort.” Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). In this case, we find that the statute’s exception for “a theater, concert hall, art center, museum, or similar establishment ... primarily devoted to the arts or theatrical performances” saves it from being over-broad. The statutory exception appropriately limits the reach of the restrictions to the type of adult entertainment that is associated with harmful secondary effects. Cf. Barnes, 501 U.S. at 585 n. 2, 111 S.Ct. 2456 (Souter, J., concurring in the judgment). We therefore reject the plaintiffs’ overbreadth challenge. Likewise, we find that section 728.5 is not unconstitutionally vague. In order to avoid a finding of vagueness, a statute must (1) be clear enough to provide a person of ordinary intelligence with" }, { "docid": "10515318", "title": "", "text": "can be regulated because of its content unless there is “clear and convincing evidence” that the defamatory statement was made “with actual malice, i.e. with knowledge that it was false or with reckless disregard of whether it was false or not.” Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510, 111 S.Ct. 2419, 2429, 115 L.Ed.2d 447 (1991); see also New York Times Co. v. Sullivan, 376 U.S. 254, 282, 84 S.Ct. 710, 727, 11 L.Ed.2d 686 (1964). Again, from the record before us, we cannot determine as a matter of law whether the individuals held up for scorn were public or private figures. The FPATV Committee have neither alleged nor provided any evidence that these individuals are private individuals. Moreover, the FPATV Committee and the Council have neither alleged nor presented “clear and convincing” evidence that Coplin knowingly or recklessly defamed any of the individuals ridiculed on his program. As a result, it was inappropriate to rule as a matter of law that Coplin’s speech, if false, was constitutionally proscribable defamation. C. Even if we could rule as a matter of law that the statements made on Coplin’s show were an invasion of privacy if true and defamation if false, summary judgment for the FPATV Committee and the Council members would still not necessarily be appropriate. Coplin has raised several other First Amendment contentions on appeal that may preclude summary judgment. Because we remand for further fact-finding, we need not address any other issue raised here on ap peal. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-47, 56 S.Ct. 466, 488, 80 L.Ed. 688 (1936) (Brandeis, J., concurring) (“The Court will not anticipate a question of constitutional law in advance of the necessity of deciding it.” (quotations and citations omitted)); see also Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 501, 105 S.Ct. 2794, 2801, 86 L.Ed.2d 394 (1985) (“We call to mind two of the cardinal rules governing the federal courts: one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; .the other never to formulate a rule" }, { "docid": "21092583", "title": "", "text": "(1987). The overbreadth doctrine allows: an individual whose own speech or expressive conduct may validly be prohibited or sanctioned ... to challenge a statute on its face because it also threatens others not before the court — those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid. Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503, 105 S.Ct. 2794, 2801-02, 86 L.Ed.2d 394 (1985). “[T]here must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds.” Jews for Jesus, Inc., 482 U.S. at 574, 107 S.Ct. at 2572 (quoting Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801, 104 S.Ct. 2118, 2126, 80 L.Ed.2d 772 (1984)). “It is not the usual judicial practice, ... nor do we consider it generally desirable to proceed to an overbreadth issue unnecessarily — that is, before it is determined that the statute would be valid as applied.” Board of Trustees v. Fox, 492 U.S. 469, 484-85, 109 S.Ct. 3028, 3037, 106 L.Ed.2d 388 (1988). Permitting a facial challenge “would convert the use of the overbreadth doctrine from a necessary means of vindicating the plaintiffs own right not to be bound by a statute that is unconstitutional into a means of mounting gratuitous wholesale attacks upon state and federal laws.” Id. at 485,109 S.Ct. at 3037. Because we conclude that the statutes are invalid as applied, it is appropriate that we not consider the overbreadth issue. See id. Similarly, the district court should have first considered the validity of the statutes as applied instead of reaching the overbreadth question in the first instance. Had the district court done so, it also would have found it unnecessary to consider the overbreadth issue. Accordingly, we must vacate that portion of the district court’s opinion and judgment that holds the statutes overbroad. III. Our conclusion that the statutes are unconstitutional undercuts Holden’s and" }, { "docid": "14480311", "title": "", "text": "charge of violating this regulation be dismissed because of a violation of his Article 31 rights. Moreover, he also moved that all his statements made at this so-called “show and tell” inspection be suppressed because he was a suspect and not properly advised of his Article 31 rights. Finally, the military judge expressly ruled at trial that appellant “was not a suspect” at the time of this inquiry. In this context, we hold that appellant did not waive his right to challenge the lawfulness of this regulation. A second question we must decide is whether it is necessary to answer the granted issue in order to resolve appellant’s case. Appellate defense counsel broadly asserts that paragraph 176, USFK 27-5, on its face violates Article 31 and the Fifth Amendment. See generally United States v. Kauffman, 14 U.S.C.M.A. 283, 297-98, 34 C.M.R. 63, 77-78 (1963); United States v. Smith, 9 U.S.C.M.A. 240, 26 C.M.R. 20 (1958). The Government, relying on California v. Byers, 402 U.S. 424, 91 S.Ct. 1535, 29 L.Ed.2d 9 (1971), argues that this regulatory program can be lawfully sustained. Although this broad question is most interesting, this case can be resolved on the more narrow ground that this regulatory program as applied to appellant was unconstitutional. See Brockett v. Spokane Arcades, 472 U.S. 491, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985); Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 6 S.Ct. 1064, 1072-73, 30 L.Ed. 220 (1886). Cf. Selective Service Systems v. Minnesota Public Interest Research Group, 468 U.S. 841, 104 S.Ct. 3348, 82 L.Ed.2d 632 (1984). See generally Suth erland Statutory Construction § 2.06 (Sands 4th ed. 1985 revision). Our starting point in reaching this conclusion is the challenged regulation. Paragraph 176(2) and (3), USFK 27-5, states: b. Personnel will: ****** (2) Upon request of the unit commander, military law enforcement personnel, or responsible officer, present valid and bona fide information or documentation showing the continued possession or lawful disposition (by serial number if manufactured with one) of any controlled item as listed in USFK Reg 60-1, regardless of where or how acquired, brought into Korea duty-free." }, { "docid": "18680891", "title": "", "text": "organization to insure unit readiness and the ability of the unit to accomplish its mission.” The military judge also found valid military purposes for this order: to preserve unit readiness and to protect and safeguard the health of Air Force members. The military, and society at large, have a compelling interest in having those who defend the nation remain healthy and capable of performing their duty. See National Treasury Employees Union v. Von Raab, — U.S. —, 109 S.Ct. 1384, 1396, 103 L.Ed.2d 685 (1989). We have recently held that a servicemember who engages in sexual intercourse without protection, knowing that his seminal fluid contains a deadly virus capable of sexual transmission, can be convicted of committing an “inherently dangerous act” likely to cause death or great bodily harm and that such conduct can be prejudicial to the good order and discipline of the armed forces under Article 134, UCMJ, 10 USC § 934. United States v. Woods, 28 MJ 318 (CMA 1989). Today we add that a “safe-sex order” can have a valid military purpose, and this one does. Appellant also attacks the order as being overly broad, referring to the implicit limitations on sexual contact with civilians having no connection with the military and the requirement to notify all medical personnel. Because appellant is not charged with violating the order in this way, we need not consider these aspects here. Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985). In this case, the military context is obvious: Appellant is not entitled to relief based on other, hypothetical conduct. See Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974). Finally, we consider whether this military order interfered with constitutionally-protected private affairs of appellant. First, we note that forcible sodomy is not constitutionally-protected conduct. Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed. 2d 140 (1986). Also, the First Amendment and related concerns of privacy apply differently to the military community because of the unique mission and need for internal discipline. Parker v. Levy, supra, and United States" }, { "docid": "22849224", "title": "", "text": "We of course venture no opinion as to facts that should be found, nor upon whether and how any facts that may be found will invoke the controlling doctrine. We hold only that the questions of fact and law raised on the record at this point are, under controlling doctrine, sufficiently serious and grave ones that, when considered with the balance of potential harms, the district court’s injunc-tive order should stand pending trial. Jones, 704 F.2d at 717. The district court judge did not enter an order for preliminary injunction; hence we reverse the denial of the preliminary injunction and remand for the judge to consider whether or not, in light of the evidence before him, a preliminary injunction should be entered in accordance with the concerns addressed in our opinion. If the entry of a preliminary injunction is proper, the court need not invalidate the entire Trespass Statute. Cf. Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 501-02, 105 S.Ct. 2794, 2800-01, 86 L.Ed.2d 394 (1985) (“Facial invalidation of the statute was ... improvident” and “a federal court should not extend its invalidation of a statute further than necessary to dispose of the case before it.”). The district court’s order merely need preliminarily enjoin enforcement of the proviso of § 61-3B-3(d). REVERSED AND REMANDED. . We refer to the defendants/appellees as the \"Police,\" although the named defendants included W. Gaston Caperton, Governor and Chief Executive Officer of the State of West Virginia, Colonel J.R. Buckalew, the administrative head of the West Virginia Department of Public Safety and Superintendent of the West Virginia State Police, and officers or agents of the West Virginia State Police. All defendants were sued in their official capacities. . See, e.g., Cal.Penal Code § 602(n) (1982) (trespassing provision \"shall not be applicable to persons engaged in lawful labor union activities which are permitted to be carried out on the property by the California Agricultural Labor Relations Act ... or by the National Labor Relations Act”); New Mex.Code § 30-20-13(E) (\"Nothing in this section [on criminal trespass] shall be construed to prevent lawful assembly and peaceful" }, { "docid": "2735158", "title": "", "text": "under the overbreadth doctrine if it \"does not aim specifically at the evils within the allowable area of control [by the government] but ... sweeps within its ambit other [constitutionally protected] activities.” Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). The overbreadth doctrine is an exception to conventional standing requirements. It provides that an individual whose conduct may be prohibited may challenge a regulation \"because [that regulation] also threatens others not before the court-those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid.” Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985). . The Safley test takes into account many of the same factors considered under the doctrines of vagueness and overbreadth. As we explain in greater detail later in this opinion, see infra., section II.B., Safley requires courts to consider (1) whether a rational connection exists between the regulation and a neutral, legitimate government interest; (2) whether alternative means exist for inmates to exercise the constitutional right at issue; (3) what impact the accommodation of the right would have on inmates, prison personnel, and allocation of prison resources; and (4) whether obvious, easy alternatives exist. Safley, 482 U.S. at 89-91, 107 S.Ct. 2254. . Counsel for Plaintiffs effectively conceded this point at oral argument. Transcript of Oral Argument at 34 (“[T]he truth of the matter is that pretty conventional vagueness and overbreadth analysis are built into the four factors of [Safley ].”). . Two factors present in this case compel us to examine the New Jersey legislature's judgment deferentially. First, the statute governs the management of one of New Jersey’s prisons. As the Supreme Court explained in Saf-ley, determinations related to prison management are “peculiarly within the province of the legislative and executive branches of government,” and must therefore be reviewed with a \"policy of judicial restraint.\" Safley, 482 U.S. at 84-85, 107 S.Ct. 2254 (internal citations and quotation marks omitted). That policy applies with even greater" }, { "docid": "8053318", "title": "", "text": "for screening a customer’s location and “providing messages compatible with community standards.” Id. Thus, under the facts of this case, there is no need for this court to adopt a new definition of “community” for use in obscenity prosecutions involving electronic bulletin boards. This court’s decision is guided by one of the cardinal rules governing the federal courts, i.e., never reach constitutional questions not squarely presented by the facts of a case. Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 502, 105 S.Ct. 2794, 2801, 86 L.Ed.2d 394 (1985). D. Defendants next raise a number of challenges to the jury instructions given at their trial. Initially, they claim that, as to counts 2, 3, 6 and 9, the district court should have included an augmented unanimity instruction because those counts involved more than one GIF file or videotape. The district court instructed the jury that “[i]f more than one article is alleged to be obscene in a particular count, the government is required to show only that one of these articles was obscene.” There was no request for an augmented unanimity instruction and there was no objection at trial to the instruction given. The issue was raised for the first time at sentencing. Accordingly, this court reviews for plain error. United States v. Mendez-Ortiz, 810 F.2d 76 (6th Cir.1986), cert. denied, 480 U.S. 922, 107 S.Ct. 1384, 94 L.Ed.2d 697 (1987). We have recognized that “[t]he plain error doctrine is to be used ‘only in exceptional circumstances’ and only where the error is so plain that ‘the trial judge and the prosecutor were derelict in countenancing it.’ ” Id. at 78. Moreover, “[w]e consider whether the instructions, when taken as a whole, were so clearly wrong as to produce a grave miscarriage of justice.” United States v. Sanderson, 966 F.2d 184, 187 (6th Cir.1992). When one count of an indictment charges that a defendant committed an offense by “multiple alternative ‘conceptually’ distinct acts,” the defendant can request that the court give the jury an augmented unanimity instruction, i.e., one that tells them that, with regard to this particular count, they" }, { "docid": "16715836", "title": "", "text": "is unconstitutional, apparently believing that we have so held in Kopshever — a case that carefully reserved decision on the issue, 6 F.3d at 1222 n. 6. A concession based on a misreading of our precedents means that we have not had the benefit of an adversarial presentation.- Decisions reached without the benefit of the parties’ views are more likely to overlook important matters. (The majority does not mention the considerations I discuss below.) The prosecutor’s concession may justify instructing the district court to use the 1988 version of the guidelines on remand; it does not justify a “holding” that the law violates the Constitution. Instead of finding ways to express a constitutional verdict on § 3553(a)(4), we should be searching for ways to avoid decision. Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 154, 89 L.Ed. 101 (1944); Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 501, 105 S.Ct. 2794, 2800, 86 L.Ed.2d 394 (1985). Constitutional adjudication is a last resort. Justice Brandeis’s concurring opinion in Ashwander v. TVA, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936), is but the most famous exposition of a principle that has existed since the founding of this Nation. Yet my colleagues do not contend that decision has been forced upon them; instead, they seek out a question that the parties -themselves do not believe material to this case. Because the majority has decided to tackle this subject, I express a few words of doubt about my colleagues’ approach. Article I § 9 cl. 3 of the Constitution provides: “No Bill of Attainder or ex post facto Law shall be passed.” The only statute the majority discusses is § 3553(a)(4), which assuredly is not an ex post facto law. It was enacted in 1984, with an effective date of November 1, 1987; both dates are well before Seacott committed his crimes. What my colleagues must mean is that Sentencing Guidelines altered after the date of the offense are ex post facto laws. Yet Art. I § 9 cl. 3 applies to Congress, not to" }, { "docid": "9400076", "title": "", "text": "We do not understand appellees' reference to the statute’s \"overbreadth'' to be an assertion of a facial challenge under the First Amendment overbreadth doctrine — which is really a standing exception (not applicable here) for parties engaged in unprotected conduct to challenge applications of the statute against third parties not before the court. See Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503-04, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985); Sanjour v. EPA, 56 F.3d 85, 92 n. 10 (1995). . A majority of the court has not concurred in Part II, so I see no need to air my dissent with respect to that portion of the opinion for the court. WALD and GARLAND, Circuit Judges, concurring in part and concurring in the result: For the reasons stated in the Fourth Circuit’s opinion in Schleifer v. City of Charlottesville, 159 F.3d 843, 846-47 (4th Cir.1998), as well as those expressed in Part II of Chief Judge Edwards’ opinion and Part III of Judge Rogers’ opinion, we conclude that the District of Columbia’s Juvenile Curfew Act implicates the constitutional rights of children and their parents, and that intermediate scrutiny is the appropriate level of review. For the reasons stated in Part III of the Opinion of the Court, we conclude that the Curfew Act passes that scrutiny, and for the reasons stated in Part IV agree that it is otherwise constitutional as well. ROGERS, Circuit Judge, with whom Circuit Judge TATEL, joins, concurring in part and dissenting in part, and with whom Circuit Judge WALD joins in Parts II and III, and Circuit Judge GARLAND joins in Part III: All members of the court agree that a test at least as rigorous as intermediate scrutiny would be proper for evaluating burdens on minors’ fundamental right to freedom of movement. To the extent that the court hedges on the breadth of the right to free movement, however, the court mistakenly concludes that the right, if it exists at all, does not protect minors here. Were the plurality to define the right without regard to age, inasmuch as the Constitution applies to" }, { "docid": "7890532", "title": "", "text": "of a complete rewrite of the statute will save it. In these circumstances, neither abstention nor certification is appropriate. Houston v. Hill, 482 U.S. at 470-71, 107 S.Ct. at 2514. The district court did not abuse its discretion in refusing to abstain, and we reject the State’s suggestion that we stay our hand and certify the matter to the Supreme Court of Hawaii. Finally, the State contends that we may not reach the question of overbreadth because, if the statute is unconstitutional as applied to Lind, he has no standing to challenge it as overbroad. See, e.g., Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 501-04, 105 S.Ct. 2794, 2800-02, 86 L.Ed.2d 394 (1985): [While facial invalidation due to over-breadth may be proper when the statute is constitutional as applied to the party before the court, it] is otherwise where the parties challenging the statute are those who desire to engage in protected speech that the overbroad statute purports to punish.... There is then no want of a proper party to challenge the statute, no concern that an attack on the statute will be unduly delayed or protected speech discouraged. The statute may forthwith be declared invalid to the extent that it reaches too far, but otherwise left intact. Id. at 504, 105 S.Ct. at 2802. See also Renne v. Geary, 501 U.S. 312, 324, 111 S.Ct. 2331, 2340, 115 L.Ed.2d 288 (1991). Brockett and Geary, however, deal with an issue different from that presented by Lind. Overbreadth doctrine is an exception to the usual rules of standing, designed to prevent the chilling effect overbroad statutes may have on parties not before the court. See Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 575-76, 107 S.Ct. 2568, 2572-73, 96 L.Ed.2d 500 (1987). Where a statute’s overbreadth is substantial, its chilling effect is likely to be significant, and consequently the entire statute may be invalidated to protect First Amendment interests. See id. Brockett and Geary simply recognize that when a statute’s only unconstitutional application is the one directed at a party before the court," }, { "docid": "10515319", "title": "", "text": "if we could rule as a matter of law that the statements made on Coplin’s show were an invasion of privacy if true and defamation if false, summary judgment for the FPATV Committee and the Council members would still not necessarily be appropriate. Coplin has raised several other First Amendment contentions on appeal that may preclude summary judgment. Because we remand for further fact-finding, we need not address any other issue raised here on ap peal. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-47, 56 S.Ct. 466, 488, 80 L.Ed. 688 (1936) (Brandeis, J., concurring) (“The Court will not anticipate a question of constitutional law in advance of the necessity of deciding it.” (quotations and citations omitted)); see also Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 501, 105 S.Ct. 2794, 2801, 86 L.Ed.2d 394 (1985) (“We call to mind two of the cardinal rules governing the federal courts: one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; .the other never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” (quotations, citations, and alteration omitted)). III. Coplin challenges the magistrate judge’s holding that he is not entitled as a matter of law to monetary damages under 47 U.S.C. § 555a(a). He argues that the magistrate judge’s decision on this issue was procedurally improper because the magistrate judge was only supposed to rule on matters of declaratory and injunctive relief in the first phase of Coplin’s bifurcated suit. However, because Coplin’s allegations of monetary damages and attorney’s fees fail to state a claim upon which relief may be granted, any procedural error that the magistrate judge may have committed by ruling that Coplin is not entitled to monetary damages is harmless. A district court can grant sum-, mary judgment sua sponte as long as the “party against whom judgment will be entered was given sufficient advance notice and an adequate opportunity to demonstrate why summary judgment should, not be-granted.” Madewell v. Downs, 68 F.3d 1030, 1048 (8th Cir.1995)" } ]

[ { "docid": "22697798", "title": "", "text": "kept no books and maintained no bank account during its existence and owned no other assets than as described. The sales made in 1934 and 1935 were reported in petitioner’s income tax returns, a small loss being reported for the earlier year and a gain of over $5,000 being reported for 1935. Subsequently, on advice of his auditor, Thompson filed a claim for refund on petitioner’s behalf for 1935 and sought to report the 1935 gain as his individual return. He reported the gain on the 1936 sale. The question is whether the gain realized on the 1935 and 1936 sales shall be treated as income taxable to petitioner, as the Government urges, or as Thompson’s income. The Board of Tax Appeals held for petitioner on the ground that because of its limited purpose, the corporation “was a mere figmentary agent which should be disregarded in the assessment of taxes.” Moline Properties v. Commissioner, 45 B. T. A. 647. The Circuit Court of Appeals reversed on the ground that the corporate entity, chosen by Thompson for reasons sufficient to him, must now be recognized in the taxation of the income of the corporation. Commissioner v. Moline Properties, 131 F. 2d 388. The doctrine of corporate entity fills a useful purpose in business life. Whether the purpose be to gain an advantage under the law of the state of incorporation or to avoid or to comply with the demands of creditors or to serve the creator’s personal or undisclosed convenience, so long as that purpose is the equivalent of business activity or is followed by the carrying on of business by the corporation, the corporation remains a separate taxable entity. New Colonial Co. v. Helvering, 292 U. S. 435, 442; Deputy v. du Pont, 308 U. S. 488, 494. In Burnet v. Commonwealth Improvement Co., 287 U. S. 415, this Court appraised the relation between a corporation and its sole stockholder and held taxable to the corporation a profit on a sale to its stockholder. This was because the taxpayer had adopted the corporate form for purposes of his own. The" } ]

[ { "docid": "21155367", "title": "", "text": "the corporation does not fall within the formula * * *. We find no such limitation in the formula adopted by the Supreme Court in the Moline Properties case. That no such limitation is intended is made clear by the Court’s subsequent opinion in National Carbide Corporation v. Commissioner of Internal Revenue, 336 U.S. 422, 69 S. Ct. 726, 93 L. Ed. 779. The Court there expressly called attention to its holding in the Moline Properties case, notwithstanding the findings of the Tax Court that full beneficial ownership of the property there involved was in the sole stockholder. The Court said: “Undoubtedly the great majority of corporations owned by sole stockholders are ‘dummies’ in_ the sense that their policies and day-to-day activities are determined not as decisions of the corporation but by their owners acting individually. * * * We reversed the Board of Tax Appeals in Moline Properties in the face of its findings that ‘‘Full beneficial ownership was in Thompson [the sole stockholder] who continued to manage and regard the property as his own individually.’ ” (Emphasis added). * * * It goes without saying that where the Supreme Court has clearly established legal principles in dealing with the subject matter in litigation, we look to these principles for guidance. They are controlling on us. Particularly in light of the gloss which National Carbide Corporation v. Commissioner, supra, has placed on the Moline Properties, Inc. case, we are unable to agree with the taxpayers here that their activities do not fall within the language of the formulation set down by the Supreme Court in the Moline Properties case. In Moline and National Carbide, the Supreme Court has established and reaffirmed a formida which goes the whole distance in attributing to a corporation, as its own for tax purposes, income, earnings, profits, and assets that are, according to state law, beneficially (legally and equitably) owned by others. Y After rejecting the agency contentions of the taxpayer in National Carbide Corp. v. Commissioner, supra, the Supreme Court expressed the following qualification: What we have said does not foreclose a true" }, { "docid": "11661694", "title": "", "text": "The National Carbide Court rejected this argument as a misinterpretation of Southern Pacific, which was not predicated on any theory of agency. Rather, they said, Southern Pacific held that the corporate entity might be ignored for tax purposes because of the “practical identity” of the parent and subsidiary corporation. The Court further pointed out that Moline had repudiated Southern Pacific, and that, in any event, it was inapplicable to the taxpayers’ agency argument. Complete ownership of the corporation, and the control primarily dependent upon such ownership — the important ingredients of the Southern Pacific case — are no longer of significance in determining tax-ability. Moline Properties, Inc. v. Commissioner, supra; Burnet v. Commonwealth Improvement Co., 1932, 287 U.S. 415, 53 S.Ct. 198, 77 L.Ed. 399. 336 U.S. at 429, 69 S.Ct. at 730. National Carbide held that the Tax Court had improperly failed to distinguish “agency” and “practical identity” when it ruled the subsidiaries were true agents. The theory upon which the Tax Court expunged the deficiencies apparently was ... that the corporate entity may be disregarded (or the corporation treated as an agent of its owner) for tax purposes when the facts of ownership and control of the corporation approximate those presented by the Southern Pacific case. Id. at 431, 69 S.Ct. at 731. Hence, in finding that the subsidiaries were Airco’s agents, the Tax Court improperly relied only on the facts of ownership, control, and right to income. Id. at 433, 69 S.Ct. at 732. The Supreme Court agreed with the court of appeals that the Southern Pacific indicia of practical identity “can make no difference tax-wise.” Id. at 432, 69 S.Ct. at 731. Although the fact of ownership does not negate the existence of an agency relationship, neither does it establish such a relationship. National Carbide indicated something more was needed: What we have said does not foreclose a true corporate agent or trustee from handling the property and income of its owner-principal without being taxable therefor. Whether the corporation operates in the name and for the account of the principal, binds the principal, by its actions," }, { "docid": "11661697", "title": "", "text": "from National Carbide and enumerated with bracket insertion six distinct factors thus: What we have said does not foreclose a true corporate agent or trustee from handling the property and income of its owner-principal without being taxable therefor. [1] Whether the corporation operates in the name and for the account of the principal, [2] binds the principal, by its actions, [3] transmits money received to the principal, and [4] whether receipt of income is attributable to the services of employees of the principal and to assets belonging to the principal are some of the relevant considerations in determining whether a true agency exists. [5] If the corporation is a true agent, its relations with its principal must not be dependent upon the fact that it is owned by the principal, if such is the case. [6] Its business purpose must be the carrying on of the normal duties of an agent. 708 F.2d at 990, quoting and adding emphasis, 69 S.Ct. at 734. The Roccaforte court also explained: The first four conditions set out in National Carbide are general principles of agency law, and serve only as “relevant considerations” in the determination of true agency status. The fifth and sixth conditions, however, are mandatory and absolute. The plain language of National Carbide admits of no other interpretation. The fifth condition states that in order, to be a true agent, a corporation’s “relations with its principal must not be dependent upon the fact that it is owned by the principal.” The sixth condition is framed in equally mandatory language. The fifth and sixth conditions are not mere factors of uncertain weight; they are prerequisites which must be satisfied before a corporation can qualify as a true agent. Id. at 989. Cf. Jones v. Commissioner, 640 F.2d 745, 755 (5th Cir.1981) (referring to “the crucial fifth and sixth National Carbide factors — whether the relationship was arms-length and independent, and whether the corporate general partner functioned in a manner consistent with the normal duties of a general partner ... ”), cert. denied, 454 U.S. 965, 102 S.Ct. 507, 70 L.Ed.2d 381 (1981)." }, { "docid": "12002166", "title": "", "text": "into by a corporation, rather than the validity of the corporation itself. Cf. Rubin v. Commissioner, 51 T.C. 251, 266, n.19 (1968), rev’d and rem’d, 429 F.2d 650 (2d Cir. 1970), opinion on remand, 56 T.C. 1155 (1971), aff’d, 460 F.2d 1216 (2d Cir. 1972) (per curiam). But to apply Lucas v. Earl in this fashion under the circumstances present here is effectively (and more realistically) to nullify the determination that the Corporation is a viable, taxable entity and not a sham. See Moline Properties v. Commissioner, 319 U.S. 436, 63 S.Ct. 1132, 87 L.Ed. 1499 (1943); National Carbide v. Commissioner, 336 U.S. 422, 69 S.Ct. 726, 93 L.Ed. 779 (1949). In Moline Properties v. Commissioner, supra, the Supreme Court confronted the question whether the gain on sale of certain real estate held by a corporation as security was to be taxed to the corporation or to its sole shareholder. The Court perceived the problem as determining whether the corporate form might be disregarded for tax purposes as a sham or unreal. The Court said that the corporation was a viable taxable entity so long as the purpose of its creation is the equivalent of business activity or its creation is followed by the carrying on of business by the corporation. In Mo-line Properties, the question of purpose to evade or avoid income taxes (through the use of a corporation) was addressed as part of the theretofore live issue whether the corporation was a viable taxable entity or a sham. Although, as a practical matter the “viability” objection has apparently now fallen into general disuse, the Moline Properties analysis is still fundamental. National Carbide Corp. v. Commissioner, 336 U.S. 422, 429-30, 69 S.Ct. 726, 730, 93 L.Ed. 779 (1949). See also Siegel v. Commissioner, 45 T.C. 566 (1966); Bass v. Commissioner, 50 T.C. 595 (1968). We think it inappropriate, in light of Moline Properties and National Carbide, except on more extreme facts than appear here, to achieve, through recourse to the assignment of income doctrine, essentially the same result as would follow from treating the Corporation as a “sham” for" }, { "docid": "384023", "title": "", "text": "because there was a practical identity between his financial affairs and those of the corporation, that the corporation should be ignored or disregarded for federal tax purposes. In rejecting taxpayer’s argument, the Court stated: The doctrine of corporate entity fills a useful purpose in business life. Whether the purpose be to gain an advantage under the law of the state of incorporation or to avoid or to comply with the demands of creditors or to serve the creator’s personal or undisclosed convenience, so long as that purpose is the equivalent of business activity or is followed by the carrying on of business by the corporation, the corporation remains a separate taxable entity. 319 U.S. at 438-39, 63 S.Ct. at 1134. In the case at bar, taxpayer concedes that the corporation carried on sufficient business activity to be recognized as a separate taxable entity and, therefore, does not argue that the corporation should be ignored or disregarded for federal tax purposes. Instead taxpayer argues here, as he did below, that the corporation’s activities in taking title to the land and executing notes and mortgages were performed only as the agent of the partnership and, therefore, the losses from the operation of the apartment complex were attributable to the partnership. In Moline Properties, the taxpayer also advanced an agency argument. In rejecting this argument the Court noted that there was no agency agreement nor the usual incidents of an agency relationship and stated that the mere existence of a corporation with stockholders does not make the corporation the agent of its shareholders. 319 U.S. at 440, 63 S.Ct. at 1134. In National Carbide Corp. v. Commissioner, 336 U.S. 422, 69 S.Ct. 726, 93 L.Ed. 779 (1949), the Court again addressed the agency issue. In that case, a parent corporation and its three subsidiaries entered into an agency agreement whereby the subsidiaries were to operate and manage certain plants for the parent. The parent provided all the working capital and expertise, and in return the subsidiary turned over all the profits except for a nominal amount. The subsidiaries held title to the assets" }, { "docid": "21155368", "title": "", "text": "own individually.’ ” (Emphasis added). * * * It goes without saying that where the Supreme Court has clearly established legal principles in dealing with the subject matter in litigation, we look to these principles for guidance. They are controlling on us. Particularly in light of the gloss which National Carbide Corporation v. Commissioner, supra, has placed on the Moline Properties, Inc. case, we are unable to agree with the taxpayers here that their activities do not fall within the language of the formulation set down by the Supreme Court in the Moline Properties case. In Moline and National Carbide, the Supreme Court has established and reaffirmed a formida which goes the whole distance in attributing to a corporation, as its own for tax purposes, income, earnings, profits, and assets that are, according to state law, beneficially (legally and equitably) owned by others. Y After rejecting the agency contentions of the taxpayer in National Carbide Corp. v. Commissioner, supra, the Supreme Court expressed the following qualification: What we have said does not foreclose a true corporate agent or trustee from handling the property and income of its owner-principal without being taxable therefor. Whether the corporation operates in the name and for the account of the principal, binds the principal by its actions, transmits money received to the principal, and whether receipt of income is attributable to the services of employees of the principal and to assets belonging to the principal are some of the relevant considerations in determining whether a true agency exists. If the corporation is a true agent, its relations with its principal must not be dependent upon the fact that it is owned by the principal, if such is the case. * * * While the court’s discussion centers on requirements for proof of a valid agency relationship, similar requirements would, if met, ostensibly establish a valid trust relationship. When the Commissioner of Internal Revenue assessed taxes against Mr. Carver to the extent of his beneficial interests in Chase National transactions but excluded transactions wherein the beneficial interests belonged to Mr. Carver’s clients, he drew the line" }, { "docid": "11661716", "title": "", "text": "at 989. The one crucial question under National Carbide concerns the essential nature of the relationship between the purported corporate agent and its shareholders. Raphan v. United States, supra [3 Cl.Ct. 457 (1983) ]. The Supreme Court expressly recognized that a corporation could act as an agent for its owners under certain circumstances (336 U.S. at 437, 69 S.Ct. at 734) and specified the indicia of a true agency relationship. There is no indication that the Court intended to deny a corporation the status of agent for its shareholders in spite of the presence of the indicia of agency (factors one through four) merely because the agency is to some extent based upon the shareholders’ control of the corporation (factor five). Yet, in every case, the shareholders can control their corporation, and the adoption of the view of the Fifth Circuit would appear to lead to the conclusion that the corporation could not constitute the agent of its shareholders, despite other indicia of an agency relationship. When the Supreme Court stated that the corporation’s relations with its principal \"must not be dependent upon the fact that it is owned by the principal” (336 U.S. at 437, 69 S.Ct. at 734), the Court was merely reiterating its holding in Moline Properties that any such agency must be proved by “evidence other than the control which shareholders automatically possess over their corporations.” B. Bittker and J. Eustice, [Federal Income Taxation of Corporations and Shareholders, par. 2-10 at p. 2-28 (4th ed. 1979) ]. In other words, the taxpayer must prove that the agency existed independently of the shareholders’ ownership and control. In the present case, the petitioners have sustained such burden." }, { "docid": "7095141", "title": "", "text": "The taxpayers concede that GMA carried on sufficient business activity to require that it be recognized as a separate corporate entity. See Moline Properties, Inc. v. Commissioner, 319 U.S. 436, 63 S.Ct. 1132, 87 L.Ed. 1499 (1943). However, they urge that we affirm the Tax Court’s determination that GMA qualifies as a non-taxable agent under the test set out in National Carbide. While rejecting petitioner’s claim that it was a non-taxable agent, the Supreme Court in National Carbide nonetheless held open the possibility that an otherwise separate taxable corporate entity could, in some circumstances, qualify as a non-taxable agent of its principal. What we have said does not foreclose a true corporate agent or trustee from handling the property and income of its owner-principal without being taxable therefor. [1] Whether the corporation operates in the name and for the account of the principal, [2] binds the principal, by its actions, [3] transmits money received to the principal, and [4] whether receipt of income is attributable to the services of employees of the principal and to assets belonging to the principal are some of the relevant considerations in determining whether a true agency exists. [5] If the corporation is a true agent, its relations with its principal must not be dependent upon the fact that it is owned by the principal, if such is the case. [6] Its business purpose must be the carrying on of the normal duties of an agent. National Carbide, 69 S.Ct. at 734 (emphasis added). In the present case, the Tax Court found that the taxpayers had established in their favor conditions 1, 2,4 and 6 supra. Condition 3 was deemed inapplicable because “the ongoing construction and management of an apartment complex is not the type of undertaking in which an agent would regularly transmit moneys to the principal.” The court found that GMA failed to satisfy only the fifth condition above, concluding that its relations with the partners depended upon the fact that it was owned by them. Treating all of these conditions as factors entitled to equal weight, the court held that the “entire" }, { "docid": "12002165", "title": "", "text": "rise to the income, (6) the taxpayer does not render services as an employee to any entity other than the Corporation, (7) the Corporation is not disqualified from performing the Services required of it by contract because the law requires these services to be performed by an individual, (8) the entities paying or providing the income are not controlled or dominated by the taxpayer, and (9) as will appear, other and more appropriate legal bases exist for attacking apparent tax avoidance than broad-scale disregard of the corporate form through application of assignment of income theory. We note especially that the Tax Court did not find the Corporation to be a pure tax avoidance vehicle. Under the circumstances of the instant case, we think it inappropriate to attempt to weigh “business purposes” against “tax avoidance motives” in a determination whether the assignment of income doctrine of Lucas v. Earl should apply, in effect, to substantially disregard the corporate form. Ostensibly this inquiry has been made in order to question the validity of a transaction purportedly entered into by a corporation, rather than the validity of the corporation itself. Cf. Rubin v. Commissioner, 51 T.C. 251, 266, n.19 (1968), rev’d and rem’d, 429 F.2d 650 (2d Cir. 1970), opinion on remand, 56 T.C. 1155 (1971), aff’d, 460 F.2d 1216 (2d Cir. 1972) (per curiam). But to apply Lucas v. Earl in this fashion under the circumstances present here is effectively (and more realistically) to nullify the determination that the Corporation is a viable, taxable entity and not a sham. See Moline Properties v. Commissioner, 319 U.S. 436, 63 S.Ct. 1132, 87 L.Ed. 1499 (1943); National Carbide v. Commissioner, 336 U.S. 422, 69 S.Ct. 726, 93 L.Ed. 779 (1949). In Moline Properties v. Commissioner, supra, the Supreme Court confronted the question whether the gain on sale of certain real estate held by a corporation as security was to be taxed to the corporation or to its sole shareholder. The Court perceived the problem as determining whether the corporate form might be disregarded for tax purposes as a sham or unreal. The Court said" }, { "docid": "7095146", "title": "", "text": "L.Ed.2d 381 (1981), several partners established a corporation to take title to property and act as the borrower on a loan whose interest rate would otherwise have violated the state’s usury laws. We held in that case that because the taxpayers had “failed to produce any evidence with respect to the crucial fifth and sixth National Carbide factors,” the corporation was not a true agent. Id. at 755 (emphasis added). The fifth and sixth conditions of National Carbide are “crucial” precisely because they are mandatory. Our holding today is also supported by strong policy considerations. Closely-held corporations often function as agents or surrogates for their owners. Under Moline, however, they are treated as separate, taxable entities. If a taxpayer could, by the simple expedient of relying upon characteristics common to all such corporations, avoid tax liability, the separate entity regime would collapse. To prevent abuse, the taxpayer should be required to show more than those agency attributes that arise naturally from ownership and control of the corporation — he should be required to show that an agency relationship could exist independent of such ownership and control. This is precisely what the mandatory fifth condition of National Carbide requires. REVERSED. . La.Rev.Stat.Ann. § 9:3503 (West). Corporations were exempt from restrictions on interest rates. La.Rev.Stat.Ann. § 12:703 (West). . This letter stated in pertinent part: The above captioned corporation is a Nominee Corporation. This means that the corporation was formed solely for the purpose of receiving loan proceeds from the permanent lender and the interim lender. This corporation has no assets, it has no liabilities, it has no income, and it has no expenses. This corporation functions solely as an agent in order to accommodate the lender to avoid subjecting the permanent and the interim lenders to the State Usury Laws. . In Moline Properties, the Supreme Court set out certain criteria for determining whether a corporation is a separate taxable entity: The doctrine of corporate entity fills a useful purpose in business life. Whether the purpose be to gain an advantage under the law of the state of incorporation or to" }, { "docid": "11661692", "title": "", "text": "had transferred property to a wholly-owned corporation at the insistence of his mortgagee. The Court stated: The doctrine of corporate entity fills a useful purpose in business life. Whether the purpose be to gain an advantage under the law of the state of incorporation or to avoid or to comply with the demands of creditors or to serve the creator’s personal or undisclosed convenience, so long as that purpose is the equivalent of business activity or is followed by the carrying on of business by the corporation, the corporation remains a separate taxable entity. Id. at 438-39, 63 S.Ct. at 1133-34 (footnotes omitted). Accord Evans v. Commissioner of Internal Revenue, 557 F.2d 1095 (5th Cir.1977); Collins v. United States, 514 F.2d 1282 (5th Cir.1975), aff'g per curiam, 386 F.Supp. 17 (S.D.Ga.1974). The taxpayers concede that the 608 Corporation should not be disregarded as a separate legal entity for tax purposes. Rather, they argue that the 608 Corporation acted only as the agent or nominee of the partnership with respect to the Texas Professional Tower. In National Carbide Corp. v. Commissioner, 336 U.S. 422, 69 S.Ct. 726, 93 L.Ed. 779 (1949), the Supreme Court established criteria for determining a true agency or nominee relationship for tax purposes. In that case, Aireo established several wholly-owned subsidiaries to conduct all its business. Contracts provided that the subsidiaries were employed as Airco’s agents. Aireo was to supply its subsidiaries with working capital, management services, and office facilities. The subsidiaries were to manufacture and sell products, and turn over profits to Aireo. The subsidiaries argued that their income should be taxed directly to Aireo, because they were acting only as Airco’s agents. Because the Court in Moline cited Southern Pacific Co. v. Lowe, 247 U.S. 330, 38 S.Ct. 540, 62 L.Ed. 1142 (1918), in support of its statement that the rule that a corporation is a separate taxable entity had recognized exceptions, 319 U.S. at 439, they argued that Southern Pacific defined the content of agency for tax purposes. The taxpayers argued that in a parent/subsidiary context, “practical identity” established, ipso facto, an agency relationship." }, { "docid": "3162692", "title": "", "text": "able. Cf. Tomlinson v. Dwelle, 318 F.2d 60 (5 Cir., 1963). The taxpayers’ opposing arguments do not persuade us. They are: 1. The intervening presence and posture of National. The argument here is that National is a separate entity, actually and for income tax purposes, that its presence is not to be ignored, and that its activities cannot be imputed to Frank and McNatt. The taxpayers assert that they were not the sole or even the major customers of National; that National’s business was a bona fide commercial activity; that it earned commissions, filed returns, and paid its own income taxes; that it dealt with the taxpayers just as it did with its other clients; and that some stock repossessed by the taxpayers was not sold through National. As the petitioners urge, a corporation is usually regarded for tax purposes as an entity separate and distinct from its shareholders. Moline Properties, Inc. v. Commissioner, 319 U.S. 436, 438-439, 63 S.Ct. 1132, 87 L.Ed. 1499 (1943); National Carbide Corp. v. Commissioner, 336 U.S. 422, 69 S.Ct. 726, 93 L.Ed. 779 (1949); Greenspon v. Commissioner, supra, p. 951 of 229 F.2d There are, however, recognized exceptions. See Gregory v. Helvering, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596 (1935). It has been said, too, that the fact of existence of a corporation does not make it the agent of its shareholders. Moline Properties, Inc. v. Commissioner, supra, p. 440 of 319 U.S., p. 1134 of 63 S.Ct. Such agency is a separate question. National Carbide Corp. v. Commissioner, supra, pp. 437-438 of 336 U.S., p. 734 of 69 S.Ct. These principles are, of course, to be accepted. National may be regarded as a bona fide corporation and its commission income as properly taxable to it. But the gains on the sales of the taxpayers’ shares of Bankers and Peoples are what are involved here. It is not a question of taxing these gains to National or of National’s income being taxed to Frank and McNatt. It is a question, instead, whether National was acting as agent for the taxpayers in business" }, { "docid": "384031", "title": "", "text": "Ourisman, 82 T.C. 171, 184 (1984). On these facts, we agree with the trial court's conclusion that the corporation would not have been willing to enter into the agreement which it did with the partners if the latter did not own and control it. Ill In National Carbide, the Court stated that “[i]f the corporation is a true agent, its relations with its principal must not be dependent on the fact that it is owned by the principal”, 336 U.S. at 437, 69 S.Ct. at 734. The fact that this requirement is stated in mandatory language has led one court to conclude that failure to meet this requirement is fatal to any agency. Roccaforte, 708 F.2d at 989. If the principal and agent are under common ownership and control and if the entities did not deal at arms length, then that ends a need for further inquiry. No agency relationship can be established. The Tax Court, however, has concluded that a taxpayer should be entitled to establish that a true agency relationship exists, despite the fact of common ownership or control, by proving that other indicia of an agency are present in a particular case. In effect, the Tax Court has held that by proving what the Court in National Carbide termed relevant considerations of an agency are present in a particular case, a taxpayer has proven that the relations between the two entities are independent of ownership and control. Roccaforte v. Commissioner, 77 T.C. 263 (1981); Ourisman v. Commissioner, 82 T.C. at 185-86 (1984). In the case at bar, the trial court found that not only did the corporation enter the agreement with the partners because the latter owned and controlled it but also that taxpayer failed to establish other objective criteria of an agency. The trial court relied on the agency factors listed by the Court in National Carbide in making this determination and on the basis of those considerations, we agree that taxpayer has failed to establish an agency relationship under the particular facts of this case. As to the first consideration, whether the corporation operates in" }, { "docid": "7095140", "title": "", "text": "their agent, any losses incurred were properly those of the partners, and not those of GMA. Relying upon National Carbide Corporation v. Commissioner, 336 U.S. 422, 69 S.Ct. 726, 93 L.Ed. 779 (1949), the Tax Court found that GMA was a true agent of the partnership, and that the expenses generated by the apartment complex were properly those of the partners. Having decided the principal issue in the taxpayers favor, the court further concluded that the partners could not allocate 67 percent of the 1975 partnership deductions to the new partners admitted on December 31, 1975. It held that the new partners were entitled only to deductions for expenses allocable to the single day of December 31, 1975. The Commissioner appealed the Tax Court’s decision on the principal issue. Taxpayers herein, all of whom are partners claiming deductions retroactively to the beginning of 1975, cross-appealed from the Tax Court’s denial of retroactive partnership allocations. Since the taxpayers conceded this issue and withdrew their cross-appeal at oral argument, we do not address this issue here. ANALYSIS: The taxpayers concede that GMA carried on sufficient business activity to require that it be recognized as a separate corporate entity. See Moline Properties, Inc. v. Commissioner, 319 U.S. 436, 63 S.Ct. 1132, 87 L.Ed. 1499 (1943). However, they urge that we affirm the Tax Court’s determination that GMA qualifies as a non-taxable agent under the test set out in National Carbide. While rejecting petitioner’s claim that it was a non-taxable agent, the Supreme Court in National Carbide nonetheless held open the possibility that an otherwise separate taxable corporate entity could, in some circumstances, qualify as a non-taxable agent of its principal. What we have said does not foreclose a true corporate agent or trustee from handling the property and income of its owner-principal without being taxable therefor. [1] Whether the corporation operates in the name and for the account of the principal, [2] binds the principal, by its actions, [3] transmits money received to the principal, and [4] whether receipt of income is attributable to the services of employees of the principal and to" }, { "docid": "8068270", "title": "", "text": "their taxable income to the extent of the rental income the partnership reflected in calculating its ordinary income for the taxable years 1974 and 1975. In addition, the Service made appropriate adjustments for Dr. Jones’ taxable years 1971 and 1972, resulting from the elimination of his net operating loss carryback from 1974. The investment credit carryback likewise was denied by the Service. The Tax Court agreed with the Service. It held that under the test of Moline Properties v. Commissioner, 319 U.S. 436, 63 S.Ct. 1132, 87 L.Ed. 1499 (1943), Mateo Corporation was formed for a business purpose and conducted business activity, and therefore had to be recognized as a separate taxable entity. As a separate taxable entity, only the corporation was entitled to the business and interest expenses deductions. The Tax Court also rejected the taxpayers’ argument that Mateo Corporation was acting as an agent for Mateo Partnership. Applying the test of National Carbide Corp. v. Commissioner, supra—that for a corporation to be a true agent its relationship with its principal must not be dependent on the fact that it is owned by the principal—the Tax Court held that the taxpayers had failed in their burden of proving the normal incidents of an agency relationship between the partnership and the corporation. APPLICABLE LAW The bulk of the Tax Court’s opinion addresses the question of whether or not Mateo Corporation should be disregarded as a separate taxable entity. We have no quarrel with the Tax Court’s conclusion that numerous Supreme Court, Fifth Circuit, and Tax Court decisions have established beyond peradventure that Mateo Corporation cannot be disregarded; however, that is not an issue in this case. Taxpayers here do not seek, nor did they seek below, to disregard Mateo Corporation; nor do they argue that it should be treated as a sham or fictitious entity. Taxpayers acknowledge, and indeed insist, that Mateo Corporation should be recognized. Taxpayers’ argu ment is that Mateo Corporation is the corporate general partner of the limited partnership, that the partnership is the equitable owner of the real estate, and that Mateo Corporation properly held legal" }, { "docid": "5233847", "title": "", "text": "the Court in National Carbide added two absolutes: If a corporation is a true agent, its relations with its principal must not be dependent upon the fact that it is owned by the principal, if such is the case. Its business purpose must be the carrying on of the normal duties of an agent. [336 U.S. at 437; emphasis added.] Treating those absolutes as mere \"factors” simply ignores the language of National Carbide. Indeed, the Fifth Circuit Court of Appeals, to which an appeal herein would lie, has clearly distinguished between National Carbide’s \"relevant considerations” and its \"absolutes” by designating the latter as \"crucial factors.” Jones v. Commissioner, 640 F.2d 745, 755 (5th Cir. 1981). Given the rule of National Carbide and the majority opinion’s finding of fact concerning the dependent relations between the corporation and the partnership, I would hold that, for tax purposes, the corporation was not a mere agent of the partnership. Irwin, Wilbur, and Chabot, JJ., agree with this dissenting opinion. ^ee also Harrison Property Management Co. v. United States, 201 Ct. Cl. 77, 475 F.2d 623 (1973), cert. denied 414 U.S. 1130 (1974), wherein the Court of Claims treated the dependency of the corporate-\"principal” relations on the ownership of the corporation as the deciding factor in rejecting a corporate agency argument. Nims, J., dissenting: While I sympathize to some extent with the majority’s efforts to rescue these petitioners from a quandary not entirely of their own making, but rather one created by the concept of usury rendered archaic by the cold reality of contemporary economics, nevertheless I find it inappropriate to here sanction an end-run around Moline Properties and its holding that so long as the purpose of incorporation is the equivalent of business activity, or is followed by the carrying on of business by the corporation, the corporation remains a separate taxable entity. Moline Properties v. Commissioner, 319 U.S. 436 (1943). The Courts have been confronted with just such an effort by the Commissioner in the one-person corporation arena, for example, where the Commissioner purports to recognize the legitimacy of the corporation but then" }, { "docid": "10354372", "title": "", "text": "pointed out that the National Carbide opinion, which rejected such an agreement (comparable to the one we have before us) as establishing a “true agency”, squarely disposes of that postulate, and on the contrary calls for a more substantial showing that the comiection between the self-designated “principal” and “agent” is independent of the “principal’s” ownership of and control over the “agent”. National Carbide also answers other contentions raised on behalf of plaintiffs. One is that the “principals” (here, the Harrisons) received all the profits directly. As to this, the Supreme Court said (836 U.S. at 436) : The Tax Court felt that the fact that Aireo [the “principal” and owner in that case] was entitled to the profits by contract shows that the income “belonged to Aireo” and should not, for that reason, be taxed to petitioners [the “agents”, wholly-owned corporations]. Our decisions requiring that income be taxed to those who earn it, despite anticipatory agreements designed to prevent vesting of the income in the earners, foreclose this result. [Citing cases]. Of course, one of the duties of a collection agent is to transmit the money he receives to his principal according to their agreement. But the fact that petitioners were required by contract to turn over the money received by them to Aireo, after deducting expenses and nominal profits, is no sure indication that they were mere collection agents. Such an agreement is entirely consistent with the corporation-sole stockholder relationship whether or not any agency exists, and with other relationships as well. Another circumstance negatived by the National Carbide opinion as showing “true agency” is that the “agent’s” assets all came from the owner-“principal”, without real consideration in return. 336 U.S. at 434 — 35, 438. The Court thought it irrelevant on the agency issue whether the funds supplied by the owner were capital contributions or loans; in either case the parent was not a true principal. Similarly in our case the fact that the Harrisons supplied the Management Company’s assets and its operating capital is ineffective to create a “true agency”. In National Carbide the purported “agents” (subsidiary" }, { "docid": "8068272", "title": "", "text": "title, and performed other partnership functions, in its own corporate name without disclosing the fiduciary capacity. Taxpayers argue that the Service has recognized the form taxpayers adopted only partway; that is, taxpayers argue that the Service seeks to recognize the establishment of the corporation, but to disregard the status of the corporation as general partner in the limited partnership. The issue before this court is whether the alleged relationship—i. e., Mateo Corporation as an undisclosed general partner of the limited partnership—shall be recognized for tax purposes despite legal title lying in Mateo Corporation. When a taxpayer seeks to establish an agency relationship with a controlled corporation, the standards against which we test this relationship are established by the Supreme Court case, National Carbide Corp. v. Commissioner of Internal Revenue, 336 U.S. 422, 69 S.Ct. 726, 93 L.Ed. 779 (1949). There a parent corporation entered into a contract with its four subsidiary corporations establishing each subsidiary as agent for the parent. The parent was to furnish working capital, management, and office facilities to the subsidiaries. In return, the subsidiaries were to turn over to the parent all profits in excess of 6% of the outstanding capital stock of the subsidiaries, which was nominal. The subsidiaries held title to the assets they used; the assets were purchased with monies advanced by the parent, which advances were shown on the subsidiaries’ books as accounts payable to the parent. Those assets were worth nearly $20 million, and the number of employees of the subsidiaries was in the thousands. The Supreme Court held that the subsidiaries could not be deemed agents of the parent for tax purposes because the business arrangement between the parent and subsidiary arose only because the parent owned and completely dominated the subsidiaries. 336 U.S. at 438, 69 S.Ct. at 734. However, the Court made it clear that a wholly-owned corporation could be deemed an agent for tax purposes where the usual incidents of an agency relationship exist: Whether the corporation operates in the name and for the account of the principal, binds the principal by its actions, transmits money received" }, { "docid": "3486185", "title": "", "text": "totally worthless during the taxable year. Hence, they were not entitled to make a deduction under § 23 (k) (4). Section 23 (k) (1) does not apply, in the case of a taxpayer other than a corporation, to a nonbusiness debt. In determining whether a debt is business or nonbusiness, the inquiry is whether the loss has a proximate relationship to any trade or business engaged in by the taxpayer at the time of the loss. In order for the taxpayers to be entitled to a deduction under § 23 (k) (1), it was necessary for the taxpayers, to show that at the time of the loss they were in the business of promoting, financing and managing business enterprises, or were in the business of loaning money to business enterprises. The Tax Court found that the taxpayers were not in either of such businesses and that the losses did not have a proximate relationship to any trade or business engaged in by the taxpayers at the time of the loss. Those findings were fully supported by the evidence. Activities devoted to a single corporation and loans made to a single corporation do not constitute the trade or business of promoting, financing, and managing or loaning money to business enterprises. Accordingly, we conclude that the taxpayers were not entitled to deduct such losses. Affirmed. . Hereinafter called the taxpayers. . Hereinafter called Heinsohn. . N.5I.Stat. Ann.l 953, Vol. 8, § 51-2-36; N.M.Stat.Ann.19-11, Vol. 4, § 54-2-36. . National Carbide Corp. v. Commissioner, 336 U.S. 422, 429, 69 S.Ct. 726, 93 L.Ed. 779; Moline Properties, Inc. v. Commissioner, 319 U.S. 436, 439, 63 S.Ct. 1132, 87 L.Ed. 1499. . National Carbide Corp. v. Commissioner, 336 U.S. 422, 429, 433, 69 S.Ct. 726, 93 L.Ed. 779; See also: Burnet v. Commonwealth Improvement Co., 287 U.S. 415, 53 S.Ct. 198, 77 L.Ed. 399. . Moline Properties, Inc. v. Commissioner, 319 U.S. 436, 438-439, 63 S.Ct. 1132, 87 L.Ed. 1499. . Fletcher Cyclopedia Corporations, Rev. Perm.Ed.1931, Yol. 2, Ch. 11, § 344. . Fletcher Cyclopedia Corporations, Rev. Perm.Ed.193i, Vol. 8, Ch. 45, § 3802; Id.," }, { "docid": "11661693", "title": "", "text": "National Carbide Corp. v. Commissioner, 336 U.S. 422, 69 S.Ct. 726, 93 L.Ed. 779 (1949), the Supreme Court established criteria for determining a true agency or nominee relationship for tax purposes. In that case, Aireo established several wholly-owned subsidiaries to conduct all its business. Contracts provided that the subsidiaries were employed as Airco’s agents. Aireo was to supply its subsidiaries with working capital, management services, and office facilities. The subsidiaries were to manufacture and sell products, and turn over profits to Aireo. The subsidiaries argued that their income should be taxed directly to Aireo, because they were acting only as Airco’s agents. Because the Court in Moline cited Southern Pacific Co. v. Lowe, 247 U.S. 330, 38 S.Ct. 540, 62 L.Ed. 1142 (1918), in support of its statement that the rule that a corporation is a separate taxable entity had recognized exceptions, 319 U.S. at 439, they argued that Southern Pacific defined the content of agency for tax purposes. The taxpayers argued that in a parent/subsidiary context, “practical identity” established, ipso facto, an agency relationship. The National Carbide Court rejected this argument as a misinterpretation of Southern Pacific, which was not predicated on any theory of agency. Rather, they said, Southern Pacific held that the corporate entity might be ignored for tax purposes because of the “practical identity” of the parent and subsidiary corporation. The Court further pointed out that Moline had repudiated Southern Pacific, and that, in any event, it was inapplicable to the taxpayers’ agency argument. Complete ownership of the corporation, and the control primarily dependent upon such ownership — the important ingredients of the Southern Pacific case — are no longer of significance in determining tax-ability. Moline Properties, Inc. v. Commissioner, supra; Burnet v. Commonwealth Improvement Co., 1932, 287 U.S. 415, 53 S.Ct. 198, 77 L.Ed. 399. 336 U.S. at 429, 69 S.Ct. at 730. National Carbide held that the Tax Court had improperly failed to distinguish “agency” and “practical identity” when it ruled the subsidiaries were true agents. The theory upon which the Tax Court expunged the deficiencies apparently was ... that the corporate entity may" } ]

[ { "docid": "22179025", "title": "", "text": "the beginning of this Section would preclude most plaintiffs from individually litigating their personal claims, a class action may be the only way that most people can have their rights — even “innovative” or “immature” rights — enforced. Furthermore, if an “immature tort” truly raises a variety of new or complicated legal questions, then those questions constitute significant common issues of law. Their resolution in a single class-action forum would greatly foster judicial efficiency and avoid unnecessary, repetitious litigation. For these reasons, it is desirable to litigate the plaintiffs’ federal claims in a single forum. B. The final factor expressly specified in Rule 23(b)(3) that courts must weigh in deciding to certify a class action is whether certification will cause manageability problems. See Perez v. Metabolife Int’l, Inc., 218 F.R.D. 262, 273 (S.D.Fla.2003) (“Severe manageability problems are a prime consideration that can defeat a claim of superiority.”). This concern will rarely, if ever, be in itself sufficient to prevent certification of a class. “Courts are generally reluctant to deny class certi fication based on speculative problems with case management.” Managed Care Litig., 209 F.R.D. at 692. Even potentially severe management issues have been held insufficient to defeat class certification. See, e.g., Carnegie, 2002 U.S. Dist. LEXIS 21396, at *77 (“There is no question that this action, if certified, would present management difficulties.... [T]hose management issues, although substantial, do not counsel against certifying the class under Rule 23(b)(3).”); In re Thermagenics Corp. Sec. Litig., 205 F.R.D. 687, 697 (N.D.Ga. 2002) (“Certification cannot be denied because the number of potential class members makes the proceeding complex or difficult.”). In this case, the district court concluded that there were no “unsurmountable difficulties” with managing the case. Managed Care Litig., 209 F.R.D. at 696. While recognizing that “[r]eliance, causation and damages may create complications during the course of this litigation,” the court found that “the potential difficulties are nowhere near the magnitude of problems that could arise from 600,000 separate actions.” Id. at 696-97. In reviewing this determination, we recall two points generally applicable throughout this “superiority” analysis. First, we are not assessing whether" } ]

[ { "docid": "17299073", "title": "", "text": "court to balance, in terms of fairness and efficiency, the merits of a class action against those of alternative available methods of adjudication.” In re Warfarin Sodium Antitrust Litigation, 391 F.3d 516, 534 (3d Cir. 2004) (quotations omitted). Rule 23(b)(3) sets out several factors relevant to this inquiry, including: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action. Given the complexities of a securities litigation case, the interest of individual stockholders in controlling the prosecution of separate actions is low. The parties have not identified any other cases involving Celera common stock, which further may indicate a lack of interest in individual prosecution of claims. In re Warfarin Sodium Antitrust Litigation, 391 F.3d at 534. Because the four suits underlying this consolidated action originally were filed in the District of Connecticut, it is desirable to maintain this action in this forum. Finally, the Court is not aware of any difficulties likely to be encountered if this case is to proceed as a class action. Indeed, because there is only one principal issue in this case-whether the defendants made proper disclosures in conjunction with the secondary public offering, the Court finds that a class action is superior to other available methods for the fair and efficient adjudication of this controversy. Arnchem Products, 521 U.S. at 615,117 S.Ct. 2231. Consequently, the Court finds that the plaintiffs have satisfied both of the requirements of Rule 23(b). V. Conclusion The Court grants the plaintiffs’ request to certify this action under Rule 23(a) and (b)(3) [Doc. # 57] with Berlin and Voung as lead plaintiffs and class representatives. Pursuant to the request made in the complaint and the instant motion for certification, the class consists “of all persons who purchased PE Corporation Celera Genomics Group (‘Celera’)" }, { "docid": "15684328", "title": "", "text": "actions.” Nw. Airlines, 208 F.R.D. at 224; Butler v. Sears, Roebuck & Co., 727 F.3d 796, 801 (7th Cir.2013) (“It would drive a stake through the heart of the class action device ... to require that every member of the class have identical damages.”). The Court concludes that Plaintiffs have shown that common questions predominate over individual issues as to both antitrust impact and damages. The parties’ submissions and the record evidence lead to the conclusion that common questions predominate over individual ones and the class-action vehicle can be expected to “achieve economies of time, effort, and expense, and promote uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results.” Electrolux, 817 F.3d at 1235. Accordingly, Plaintiffs have carried their burden on the predominance inquiry with respect to all three elements of their antitrust claim. See Graphic Prods. Distribs., Inc. v. ITEK Corp., 717 F.2d 1560, 1579 (11th Cir.1983) (“Once an antitrust violation and its causal relation to plaintiffs injury have been established, the burden of proving the amount of damages is much less severe.”). 2. Superiority “In addition to finding that common questions predominate over individual inquiries, in certifying a class under Rule 23(b)(3), the Court must find that the class action vehicle is superior to other available methods for adjudication.” Domestic Air, 137 F.R.D. at 693. Among the factors relevant to the superiority requirement are these: (A) the class members’ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action. Carriuolo, 2016 WL 2870025, at *8 (quoting Fed. R. Civ. P. 23(b)(3)). Plaintiffs have put forth compelling and persuasive arguments that the first three of these factors weigh in favor of certification — see [165], pp.33-34— and neither Defendant contests those arguments. The Court finds that the fourth factor, which looks to manageability of the" }, { "docid": "22898143", "title": "", "text": "defeat a finding of predominance. See In re Sch. Asbestos Litig., 789 F.2d 996, 1010 (3d Cir.1986) (affirming class certification based on credible “showing, which apparently satisfied the district court, that class certification [did] not present insuperable obstacles” relating to variances in state law). The superiority requirement asks a district court “to balance, in terms of fairness and efficiency, the merits of a class action against those of ‘alternative available methods’ of adjudication.” Georgine v. Amchem Prods., Inc., 83 F.3d 610, 632 (3d Cir.1996), aff'd, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). Fed. R.Civ.P. 23(b)(3) instructs that the matters pertinent to this inquiry include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; [and] (D) the difficulties likely to be encountered in the management of a class action. Id. We find no reason, and Appellants fail to offer any, why a Rule 23(b)(3) class action is not the superior means to adjudicate this matter. The record before us reflects a small number of individual suits against defendants arising from the Shumway scheme, indicating a lack of interest in individual prosecution. In re Prudential, 148 F.3d at 316. The presence of certain class members with significant individual HOEPA claims may counsel against a finding of superiority, but these individuals can opt-out and pursue their claims individually. In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 534 (3d Cir.2004). If a substantial number of such individuals remain in the class, the use of subclasses may be appropriate. See generally In re Prudential, 148 F.3d at 316 n. 58. Finally, the fact that certain class members may have separate claims resulting in manageability problems does not change the result. “Confronted with a request for settlement-only class certification, a district court need not inquire whether the case, if tried, would present intractable management problems ... for" }, { "docid": "8638410", "title": "", "text": "proposed class, see Macarz v. Transworld Sys., Inc., 193 F.R.D. at 57; and (iv) whether the defendant is located in the forum state, see In re Warfarin Sodium Antitrust Litig., 391 F.3d at 534. Each factor cuts in favor of concluding that the Court is a desirable forum. At least one of Plaintiffs’ lead counsel is located in Albuquerque, New Mexico, while the Defendants’ counsel is located in Santa Fe, New Mexico, which is about an hour drive North of Albuquerque. All of the events leading to this ease occurred in New Mexico or its northern neighbor, Colorado. It is unclear where the bulk of the proposed • class members reside, but, because the leases are all located in New Mexico or Colorado, at least some members likely reside in one of those two states. Finally, while the Defendants are incorporated in Delaware, with their principal places of business in Oklahoma, they each own oil-and-gas leases in New Mexico. See Complaint ¶¶ 5-6 (noting that WPX Production and WPX Rocky Mountain are incorporated in Delaware with their principal places of business in Oklahoma). Three of the factors cut in favor of the Court being a desirable forum while one—the location of the Defendants—cuts against. Even the fourth factor, however, does not weigh heavily against desirability, because the Defendants conduct business in New Mexico—i.e. the business leading to this ease. Because all, or a substantial number, of the factors weigh in favor of finding that the Court is a desirable forum, the Court concludes that it is desirable to litigate this case in this forum. d. This Class Action Does Not Present Insurmountable Manageability Issues. 119. The fourth and final factor a court must consider in assessing superiority is the extent to which it will be able to manage the class action, if certified, through pre-trial litigation and trial, accurately adjudicating the class’ claims—in particular the individual issues—and fairly distributing relief among the class members. See Fed. R.Civ.P. 23(b)(3)(D). The manageability factor “encompasses the whole range of practical problems that may render the class action format inappropriate for a particular suit.”" }, { "docid": "5928145", "title": "", "text": "but have not yet been replaced; and (2) a Rule 23(b)(3) statutory consumer fraud class, consisting of the following six state subclasses: California, Florida, Illinois, Michigan, New Jersey, and New York, for all members whose windows have exhibited wood rot and who have replaced the affected windows. I am denying Plaintiffs’ motion to certify an unjust enrichment class. II. DISCUSSION A. Rule 23(a) Requirements 1. Implied Requirements “While the class does not have to be so ascertainable that every potential member can be specifically identified at the commencement of the action, the description of the class must be sufficiently definite so that it is administratively feasible for the court to ascertain whether a particular individual is a member.” Joseph v. General Motors Corp., 109 F.R.D. 635, 639 (D.Colo.1986); see also Foumigault v. Independence One Mortgage Corp., 234 F.R.D. 641, 644 (N.D.I11.2006). Defendants claim that Plaintiffs have not adequately set forth identifiable classes, arguing that (1) the majority of Pella’s sales are to builders and contractors, and even if an independently-owned distributor has records of the end-user’s address, Pella cannot access these records; and (2) Pella is unable to identify end purchasers from its sales to retail stores. Defendants maintain that because Pella records do not identify most class members, individual inquiry would be required to verify that particular class members have the windows in question. There is some evidence that Pella and its distributors keep some records of purchasers and warranty claims data. Where Pella’s records may be insufficient, provision of notice can supplement class identification efforts. Notice by publication has been used in cases where potential class member names were confidential or impracticable to ascertain. See In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 536-537 (3d Cir.2004) (Where class members were consumers of a prescription drug, and names and addresses of these consumers were confidential and not available to parties, notice by publication combined with call center and website was sufficient notice to identify class members.); Macarz v. Transworld Sys., Inc., 201 F.R.D. 54, 59 (D.Conn.2001) (notice by publication used where circumstances “make it impracticable to gain the" }, { "docid": "8638411", "title": "", "text": "with their principal places of business in Oklahoma). Three of the factors cut in favor of the Court being a desirable forum while one—the location of the Defendants—cuts against. Even the fourth factor, however, does not weigh heavily against desirability, because the Defendants conduct business in New Mexico—i.e. the business leading to this ease. Because all, or a substantial number, of the factors weigh in favor of finding that the Court is a desirable forum, the Court concludes that it is desirable to litigate this case in this forum. d. This Class Action Does Not Present Insurmountable Manageability Issues. 119. The fourth and final factor a court must consider in assessing superiority is the extent to which it will be able to manage the class action, if certified, through pre-trial litigation and trial, accurately adjudicating the class’ claims—in particular the individual issues—and fairly distributing relief among the class members. See Fed. R.Civ.P. 23(b)(3)(D). The manageability factor “encompasses the whole range of practical problems that may render the class action format inappropriate for a particular suit.” Eisen v. Carlisle & Jacquelin, 417 U.S. at 164, 94 S.Ct. 2140. This case does not present insurmountable manageability issues. 120. The Court would divide the class into segments on the basis of either the potential of a different legal standard applying or different factual circumstances existing: (i) between Colorado wells and New Mexico wells; (ii) between Williams Four Corners-gathered wells and independently gathered wells; and (iii) among the eight textual formulations the Court has identified among the class leases’ royalty provisions. The Court would thus segment the class as follows: In this chart, “OF” refers to the “same as fed” overriding royalties and “OS” refers to the “same as state” overriding royalties. For the Plaintiffs’ primary claim/theory of liability—which is that the keep-whole meth- odology and index-based pricing constitute a contract-breaching method of paying royalty—potentially all forty segments would need to be analyzed separately. For the Plaintiffs’ claim/theory that the magnitude of the COS charge was a breach of contract, only seg- mente 1 through 10 would need be analyzed at all—the COS charge" }, { "docid": "8638408", "title": "", "text": "in question with every other pre-certification class action out there. Taken to its logical endpoint, this reading would require the Court to compare the putative class action in front of it with every putative class action that could exist, even if it has not been filed—the same analysis the Court must perform when evaluating superiority vis-á-vis individual suits. This interpretation would then result in the Court certifying a class action only if it deemed the class action to be superior to all other theoretical class actions—in essence, perfect. The Court does not believe that the superiority inquiry is that demanding, and, although excluding other pre-certification class actions from the superiority consideration greatly incentivizes being the first attorney to file a class action and pursuing that case diligently, the Court concludes that these incentives are generally positive. c. The Desirability of Concentrating the Litigation of the Plaintiffs’ Claims in the District of New Mexico Weighs in Favor of Certification. 117. Rule 23(b)(3)’s third factor, “the desirability or undesirability of concentrating the litigation of the claims in the particular forum,” cuts in favor of certification. Fed. R.Civ.P. 23(b)(3). Specifically, both prongs for this factor—(i) the desirability of aggregation; and (ii) the desirability of the Court adjudicating the dispute—cut in favor of certification. First, because this is a negative value case, the first prong is satisfied. Without aggregation, there would be no mechanism—or at least no economical mechanism—for the Plaintiffs to have their grievances heard. For essentially the same reasons that the Court finds that a class action is superior to any other form of litigation, the Court finds that aggregation of the Plaintiffs’ claims is desirable. 118. Second, the Court is a desirable forum for the case. Several factors are considered in making this determination: (i) the geographic convenience of the parties, witnesses, or class counsel, see Zinser v. Accufix Research Inst., Inc., 253 F.3d at 1191-92; (ii) the locus of the harm, as well as any other events forming the basis of the action, see Winkler v. DTE, Inc., 205 F.R.D. at 245; (iii) the location of the bulk of the" }, { "docid": "8638287", "title": "", "text": "avoid class member-overlap with previously certified classes or else should assert different claims. 35. The third rule 23(b)(3) factor is “the desirability or undesirability of concen trating the litigation of the claims in the particular forum,” which can be split into two prongs: (i) whether aggregation is desirable; and (ii) whether the particular court at issue is a desirable forum to adjudicate the aggregated dispute. Fed.R.Civ.P. 23(b)(3)(C). The first prong, whether aggregation is desirable, is considered a recitation of the general superiority inquiry; all of the aforementioned factors and considerations apply, and courts should, additionally, consider the interest of judicial economy—from this perspective, the more cases that can be aggregated, the better. See Newberg § 4:71. The second prong is whether the particular court at issue is a desirable forum for the litigation. Some issues that reliably influence the determination of this prong include: (i) the geographic convenience of the parties, witnesses, or class counsel, see Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1191-92 (9th Cir.2001); (ii) the locus of the harm, as well as any other events forming the basis of the action, see Winkler v. DTE, Inc., 205 F.R.D. 235, 245 (D.Ariz.2001); (iii) the location of the bulk of the proposed class, see Macarz v. Transworld Sys., Inc., 193 F.R.D. 46, 57 (D.Conn.2000); and (iv) whether the defendant is located in the forum state, see In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 534 (3d Cir.2004). “The particular court at issue” does not refer only to the desirability of the United States District Court for the District of New Mexico, or even of the Albuquerque division, but, rather, the prong’s inquiry extends all the way down to the level of the individual district judge. For example, if a district judge has already made several pre-certification preliminary rulings, see Klay v. Humana, Inc., 382 F.3d 1241, 1271 (11th Cir.2004); if he or she has other, similar actions consolidated in his court, see Beaulieu v. EQ Indus. Seros., Inc., No. 5:06-CV-00400-BR, 2009 WL 2208131, at *23 (E.D.N.C. July 22, 2009); In re Relafen Antitrust Litig., 218 F.R.D." }, { "docid": "1312600", "title": "", "text": "at 429; Smilow v. Southwestern Bell Mobile Sys., 323 F.3d 32, 40 (1st Cir.2003) (“individuation of damages in consumer class actions is rarely determinative”); but see O’Sullivan v. Countrywide Home Loans, Inc., 319 F.3d 732, 744 (5th Cir.2003) (finding that damages were too individualized to allow certification). The Second Circuit has outlined a number of ways to handle individualized damages once a class has been certified. See In re Visa Check/MasterMoney Litig., 280 F.3d at 141. Thus the court determines that common issues predominate over individual ones. The class action is also the superior method of resolving this conflict. Factors that are relevant to an analysis of the superiority of the class action device include: “the interest of members of the class in individually controlling the prosecution or defense of separate actions; the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; the desirability or undesirability of concentrating the litigation of the claims in the particular forum; the difficulties likely to be encountered in the management of a class action.” In re WorldCom, Inc. Sec. Litig., 219 F.R.D. 267, 303-04 (S.D.N.Y.2003) (citing Amchem Prod., Inc. v. Windsor, 521 U.S. 591,. 625, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)). “Suits brought under the FDCPA such as this case regularly satisfy the superiority requirement of Rule 23.” In Re Risk Mgmt. Alternatives, 208 F.R.D. 493 (S.D.N.Y.2002) (citing cases); see also Mailloux v. Arrow Fin. Servs., LLC, 204 F.R.D. 38 (E.D.N.Y.2001) (certifying Rule 23(b)(3) class). As discussed in relation to Rule 23(b)(1)(A), the prospect of relatively small recovery on individual adjudications on identical issues with differing results makes class form superior to individual litigation by class members, see Bonett v. Educ. Debt Servs., 2003 WL 21658267 at *4 (E.D.Pa. May 9, 2003), and the efficient way to adjudicate these claims. The parties have not advised the court of any other significant litigation concerning the controversy already commenced by or against members of the class. Plaintiffs theory of the unitary issue governing the disposition of these claims makes it efficient and desirable to concentrate the" }, { "docid": "21299231", "title": "", "text": "meet the predominance requirement in class certification analyses. Id. at 263 (collecting cases); Lorazepam I, 202 F.R.D. at 29. Indeed, a number of courts have specifically found the predominance requirement satisfied (and certified classes) in class actions alleging antitrust injury in the form of overcharges resulting from delayed entry of a generic or lower-priced drug. See Lora-zepam I, 202 F.R.D. at 29-30; J.B.D.L. Corp. v. Wyethr-Ayerst Labs., Inc., 225 F.R.D. 208, 217-19 (S.D.Ohio 2003); In re Relafen Antitrust Litig., 218 F.R.D. 337, 343-46 (D.Mass.2003); In re Buspirone Patent Litig., 210 F.R.D. 43, 58 (S.D.N.Y.2002); Cardizem, 200 F.R.D. at 307-25. Furthermore, “[u]nder both federal and state law, the essential elements of a private antitrust action are the same....” In re Relafen Antitrust Litig., 221 F.R.D. 260, 275 (D.Mass.2004). Although Plaintiffs assert claims under the unjust enrichment laws of the fifty states, such claims may involve predominant common questions insofar as they all require a showing that Defendants were unjustly enriched at the expense of the Class Members. Moreover, the existence of minor differences in state law does not preclude the certification of nationwide classes. See In re Prudential Ins. Co. Am. Sales Practice Litig., 148 F.3d 283, 315 (3d Cir.1998). Accordingly, the Court finds that the common issues of law and fact identified above predominate over non-common issues, such that the predominance test of Rule 23(b)(3) is met. 2. Superiority Finally, the Court turns to the superiority, requirement of Rule 23(b)(3), which is met when a court determines that a class action is superior to other available means of adjudication. Fed.R.Civ.P. 23(b)(3). The superiority requirement ensures that resolution by class action will “achieve economies of time, effort, and expense, and promote ... uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable consequences.” Amchem, 521 U.S. at 615, 117 S.Ct. 2231. Here, the class action clearly provides the superior method of adjudication, for reasons discussed above. In particular, the size of the Settlement Class, the uniformity of issues regarding Defendants’ liability, and the fact that Class Members’ individuals claims are minuscule in comparison to" }, { "docid": "17299072", "title": "", "text": "defense-that this information was available to all purchasers prior to the secondary offering-will be against the entire class, and not the individual purchasers. Rather than become a distracting side issue, this defense is central to the main claim being set forth on behalf of the class. In other words, common questions and common defenses will predominate at trial. Moreover, questions of whether the information was disseminated and available prior to the secondary offering, and what weight to give to that information, are factual questions that go to the merits of the plaintiffs’ claims, and therefore are inappropriate to address at this stage of the proceedings. See Gemino, 228 F.3d at 167 (“[t]he truth-on-the-market defense is intensely fact-specific”); Provenz v. Miller, 102 F.3d 1478, 1493 (9th Cir.1996) (addressing truth on the market defense at summary judgment stage); see also Rubin v. Trimble, 1997 WL 227956 at *7 (N.D.Cal., Apr.28,1997) (citing Provenz for proposition that “[a]s the truth-on-the-market defense raises factual issues, it is generally a question for summary judgment or trial”). The superiority requirement “asks the court to balance, in terms of fairness and efficiency, the merits of a class action against those of alternative available methods of adjudication.” In re Warfarin Sodium Antitrust Litigation, 391 F.3d 516, 534 (3d Cir. 2004) (quotations omitted). Rule 23(b)(3) sets out several factors relevant to this inquiry, including: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action. Given the complexities of a securities litigation case, the interest of individual stockholders in controlling the prosecution of separate actions is low. The parties have not identified any other cases involving Celera common stock, which further may indicate a lack of interest in individual prosecution of claims. In re Warfarin Sodium Antitrust Litigation, 391 F.3d at 534. Because" }, { "docid": "17094159", "title": "", "text": "states that a class action is appropriate when 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. Fed.R.Civ.P. 23(b)(3). A district court is required to take a close look at a putative class under Rule 23(b)(3). Amchem, 521 U.S. at 615-16, 117 S.Ct. 2231. In assessing whether to certify the class, a court should consider: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action. Fed.R.Civ.P. 23(b)(3). A. Predominance “The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem, 521 U.S. at 623, 117 S.Ct. 2231. “In order to meet the predominance requirement of Rule 23(b)(3), a plaintiff must establish that ‘the issues in the class action that are subject to generalized proof, and thus applicable to the class as a whole, ... predominate over those issues that are subject only to individualized proof.’ ” Visa, 280 F.3d at 136 (quoting Rut-stein v. Avis RenL-A-Car Sys., Inc., 211 F.3d 1228, 1233 (11th Cir.2000)). This requirement is more demanding than the commonality requirement under Rule 23(a); thus, a court must deny certification where individual issues of fact abound. Moore v. Paine-Webber, Inc., 306 F.3d 1247, 1252 (2d Cir. 2002); In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., 209 F.R.D. 323, 349 (S.D.N.Y.2002). Of course, to find predominance, a Court must consider the elements of each cause of action, and determine whether those elements can be satisfied by common, class-wide proof. In re Liner-board Antitrust Litig., 305 F.3d 145, 156 (3d Cir.2002) (“Clearly, if proof of the essential" }, { "docid": "8638409", "title": "", "text": "the particular forum,” cuts in favor of certification. Fed. R.Civ.P. 23(b)(3). Specifically, both prongs for this factor—(i) the desirability of aggregation; and (ii) the desirability of the Court adjudicating the dispute—cut in favor of certification. First, because this is a negative value case, the first prong is satisfied. Without aggregation, there would be no mechanism—or at least no economical mechanism—for the Plaintiffs to have their grievances heard. For essentially the same reasons that the Court finds that a class action is superior to any other form of litigation, the Court finds that aggregation of the Plaintiffs’ claims is desirable. 118. Second, the Court is a desirable forum for the case. Several factors are considered in making this determination: (i) the geographic convenience of the parties, witnesses, or class counsel, see Zinser v. Accufix Research Inst., Inc., 253 F.3d at 1191-92; (ii) the locus of the harm, as well as any other events forming the basis of the action, see Winkler v. DTE, Inc., 205 F.R.D. at 245; (iii) the location of the bulk of the proposed class, see Macarz v. Transworld Sys., Inc., 193 F.R.D. at 57; and (iv) whether the defendant is located in the forum state, see In re Warfarin Sodium Antitrust Litig., 391 F.3d at 534. Each factor cuts in favor of concluding that the Court is a desirable forum. At least one of Plaintiffs’ lead counsel is located in Albuquerque, New Mexico, while the Defendants’ counsel is located in Santa Fe, New Mexico, which is about an hour drive North of Albuquerque. All of the events leading to this ease occurred in New Mexico or its northern neighbor, Colorado. It is unclear where the bulk of the proposed • class members reside, but, because the leases are all located in New Mexico or Colorado, at least some members likely reside in one of those two states. Finally, while the Defendants are incorporated in Delaware, with their principal places of business in Oklahoma, they each own oil-and-gas leases in New Mexico. See Complaint ¶¶ 5-6 (noting that WPX Production and WPX Rocky Mountain are incorporated in Delaware" }, { "docid": "10906974", "title": "", "text": "merits when they were negotiating this Proposed Settlement and that settlement at this stage is not premature. See, e.g., In re Warfarin Sodium Antitrust Litig., 391 F.3d at 537 (concluding that class counsel adequately appreciated the merits of the case before negotiating settlement where they had previously pursued litigation for over three years before the cases were consolidated by the MDL panel, defendant had produced hundreds of thousands of documents through discovery, there had been numerous depositions, and class counsel consulted with experts). D. The Risks of Establishing Liability and Damages This Court must also “survey the possible risks of litigation in order to balance the likelihood of success and the potential damage award if the case were taken to trial against the benefits of an immediate settlement.” Prudential II, 148 F.3d at 319. However, in doing so, a court need not conduct a “mini-trial and must, to a certain extent, give credence to the estimation of the probability of success proffered by class counsel[.]” In re Ikon Office Solutions, Inc. Sec. Litig., 194 F.R.D. 166, 181 (E.D.Pa.2000) (citation omitted). The Court recognizes that a number of similar insurance sales practices eases have failed on dispositive motions. See, e.g., In re New England Life Ins. Co., 346 F.3d 218 (1st Cir.2003); In re Minn. Mut. Life Ins. Co., 346 F.3d 830 (8th Cir.2003); Moore v. Paine Webber, Inc., 306 F.3d 1247 (2d Cir.2002); In re Northwestern Mut. Life Ins. Co. Sales Practices Litig., 70 F.Supp.2d 466 (D.N.J. 1999) , aff'd, 259 F.3d 717 (3d Cir.2001). The Defendants here, were even able to defeat similar eases. See, e.g., Shocklee v. Mass. Mut. Life Ins. Co., 369 F.3d 437 (5th Cir. 2004); Markarian v. Connecticut Mut. Life Ins. Co., 202 F.R.D. 60 (D.Mass.2001) (class certification was denied and plaintiffs appeal was dismissed with prejudice on March 13, 2002); Cunningham v. Mass. Mut. Life Ins. Co., No. 4:95-CV-417-B-B (N.D.Miss.) (the case settled and a judgment dismissing the case with prejudice was entered on March 4, 2000) ; Thelen v. Mass. Mut. Life Ins. Co., 111 F.Supp.2d 688 (D.Md.2000); Cohn v. Massachusetts Mut. Life" }, { "docid": "17276872", "title": "", "text": "the faulty premise that plaintiffs are not entitled to liquidated damages of $2,500 without proof of actual damages. As we already held, however, plaintiffs may recover liquidated damages even if they fail to show that they suffered any actual damage. The DPPA fixes the amount of damages, so individualized determinations will be unnecessary. In short, we find that questions of law and fact common to the class members predominate over any questions affecting only individual members. ii. Superiority “The superiority requirement ‘asks the court to balance, in terms of fairness and efficiency, the merits of a class action against those of alternative available methods of adjudication.’ ” In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 533-34 (3d Cir. 2004) (quoting Prudential, 148 F.3d at 316). In considering whether a class action is the fairest and most efficient method of adjudication, we should consider, among other matters: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the difficulties likely to be encountered in the management of a class action. Fed.R.Civ.P. 23(b)(3). The first matter weighs neither in favor nor against class certification because the class members do not appear to have any particular interest in individually controlling the prosecution of separate actions. Although there is no similar litigation pending, scores of individuals could file similar suits if we do not incorporate their claims into a class action. See Friedman Deck H3. It would conserve judicial resources to head off separate litigation by concentrating all of these claims into a class action, and we perceive no particular advantages or disadvantages to concentrating them in this forum. Finally, the claims in this case are relatively straightforward and do not involve any significant individual issues, so we do not expect to encounter great difficulties in managing a class action. Nevertheless, defendants argue that “ ‘a class" }, { "docid": "8638289", "title": "", "text": "337, 347 (D.Mass.2003); or even if he or she possesses particular expertise at handling the claims alleged by the proposed class, the judge may weigh those facts in favor of a finding of superiority. 36. The fourth, final, and most important factor a court must consider in assessing superiority is the extent to which the court will be able to manage the class action, if certified, through pre-trial litigation and trial, accurately adjudicating the class’ claims—in particular the individual issues— and fairly distributing relief among the class members. See Fed.R.Civ.P. 23(b)(3)(D). The manageability factor “encompasses the whole range of practical problems that may render the class action format inappropriate for a particular suit.” Eisen v. Carlisle & Jacquelin, 417 U.S. at 164, 94 S.Ct. 2140. The principal concern in a manageability inquiry is individualization. The size of a proposed class, on its own, does not affect manageability; increasing the size of a proposed class only hurts manageability if it introduces new proposed class members with individual issues. See Carnegie v. Household Int’l, Inc., 376 F.3d 656, 660-61 (7th Cir.2004) (Posner, J.). As such, several courts have held that, if the predominance requirement is met, then the court should not decline to certify the class on manageability grounds alone. The predominance analysis has a tremendous impact on the superiority analysis for the simple reason that, the more common issues predominate over individual issues, the more desirable a class action lawsuit will be as a vehicle for adjudicating the plaintiffs’ claims both relative to other forms of litigation such as joinder or consolidation, and in absolute terms of manageability. Sacred Heart Health Sys., Inc. v. Humana Military Healthcare Servs., Inc., 601 F.3d 1159, 1184 (11th Cir.2010)(internal citations and quotation marks omitted). See Klay v. Humana, Inc., 382 F.3d 1241, 1272 (11th Cir.2004)(“[W]here a court has already made a finding that common issues predominate over individualized issues, we would be hard pressed to conclude that a class action is less manageable than individual actions.”). 37. When it comes to designing a fair management plan for trying a class action, district courts have myriad" }, { "docid": "14397492", "title": "", "text": "only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually eon- ■ trolling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action. Fed.R.Civ.P. 28(b)(3). District courts are required to take a close look at the class under Rule 23(b)(3) before it is certified. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615-16, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). A. Predominance “The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem, 521 U.S. at 623, 117 S.Ct. 2231. “In order to meet the predominance requirement of Rule 23(b)(3), a plaintiff must establish that ‘the issues in the class action that are subject to generalized proof, and thus applicable to the class as a whole, ... predominate over those issues that are subject only to individualized proof.’ ” Visa, 280 F.3d at 136 (quoting Rutstein v. Avis Rent-A-Car Sys., Inc., 211 F.3d 1228, 1233 (11th Cir.2000)). This predominance requirement is more demanding than the commonality requirement under Rule 23(a), and thus the Court must deny certification where individual issues of fact abound. Moore v. PaineWebber, Inc., 306 F.3d 1247, 1252 (2d Cir.2002); In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., 209 F.R.D. 323, 349 (S.D.N.Y.2002); see also Jones v. Goord, 190 F.R.D. 103, 113 (S.D.N.Y.1999) (“While this section raises similar issues as the typicality and commonality requirements of Rule 23(a), under Rule 23(b)(3) the predominance criterion is far more demanding.”). “[A]ll relevant Court of Appeals and the bulk of relevant district court decisions have rejected class certification in products liability cases.” In re Rezulin Prods. Liab. Litig., 210 F.R.D. 61, 65-66 (S.D.N.Y.2002) (collecting" }, { "docid": "5676210", "title": "", "text": "concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action. Fed.R.Civ.P. 23(b)(3). Of course, the court’s inquiry under Rule 23(a) and (b) is not exactly the same as it would be were certification not attendant to a proposed settlement. For one, the court need not consider factors in Rule 23 that are inapplicable if the case is to settle. See Amchem, 521 U.S. at 620, 117 S.Ct. 2231 (“Confronted with a request for settlement-only class certification, a district court need not inquire whether the case, if tried, would present intractable management problems for the proposal is that there be no trial.” (internal citation omitted)). And, in keeping with Rule 23(e)’s policy to protect unnamed class members, the court should be particularly vigilant in determining whether to certify a class for settlement with respect to those class certification rules in Rule 23(a) and (b) that are “designed to protect absentees by blocking unwarranted or overbroad class definitions.” Id. B. Legal Standard for Fairness After determining the proposed settlement class may properly be certified under Rule 23, the court must evaluate the fairness of a proposed class action settlement under Rule 23(e). See In re Ins. Brokerage Antitrust Litig., 579 F.3d 241, 258 (3d Cir.2009) (“ ‘Even if it has satisfied the requirements for certification under Rule 23, a class action cannot be settled without the approval of the court and a determination that the proposed settlement is fair, reasonable and adequate.’ ” (quoting Prudential, 148 F.3d at 316)). Where, as here, “settlement negotiations precede class certification, and approval for settlement and certification are sought simultaneously,” the court must protect absentee class members by applying an “even more rigorous, heightened standard.” In re Pet Food Prods. Liab. Litig., 629 F.3d 333, 349-50, 2010 WL 5127661, at *12 (3d Cir. Dec. 16, 2010) (internal marks omitted) (quoting In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 534 (3d Cir.2004)). Ultimately, however, the question of fairness is a discretionary one committed to the district court. See Eichenholtz v. Brennan, 52 F.3d 478, 482 (3d" }, { "docid": "8638288", "title": "", "text": "well as any other events forming the basis of the action, see Winkler v. DTE, Inc., 205 F.R.D. 235, 245 (D.Ariz.2001); (iii) the location of the bulk of the proposed class, see Macarz v. Transworld Sys., Inc., 193 F.R.D. 46, 57 (D.Conn.2000); and (iv) whether the defendant is located in the forum state, see In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 534 (3d Cir.2004). “The particular court at issue” does not refer only to the desirability of the United States District Court for the District of New Mexico, or even of the Albuquerque division, but, rather, the prong’s inquiry extends all the way down to the level of the individual district judge. For example, if a district judge has already made several pre-certification preliminary rulings, see Klay v. Humana, Inc., 382 F.3d 1241, 1271 (11th Cir.2004); if he or she has other, similar actions consolidated in his court, see Beaulieu v. EQ Indus. Seros., Inc., No. 5:06-CV-00400-BR, 2009 WL 2208131, at *23 (E.D.N.C. July 22, 2009); In re Relafen Antitrust Litig., 218 F.R.D. 337, 347 (D.Mass.2003); or even if he or she possesses particular expertise at handling the claims alleged by the proposed class, the judge may weigh those facts in favor of a finding of superiority. 36. The fourth, final, and most important factor a court must consider in assessing superiority is the extent to which the court will be able to manage the class action, if certified, through pre-trial litigation and trial, accurately adjudicating the class’ claims—in particular the individual issues— and fairly distributing relief among the class members. See Fed.R.Civ.P. 23(b)(3)(D). The manageability factor “encompasses the whole range of practical problems that may render the class action format inappropriate for a particular suit.” Eisen v. Carlisle & Jacquelin, 417 U.S. at 164, 94 S.Ct. 2140. The principal concern in a manageability inquiry is individualization. The size of a proposed class, on its own, does not affect manageability; increasing the size of a proposed class only hurts manageability if it introduces new proposed class members with individual issues. See Carnegie v. Household Int’l, Inc., 376 F.3d" }, { "docid": "300820", "title": "", "text": "and nature of any litigation concerning the controversy already commenced by or against members of the class; (c) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (d) the difficulties likely to be encountered in the management of a class action. See, e.g., Recinos-Recinos v. Express Forestry, Inc., 233 F.R.D. 472, 482 (E.D.La.2006); In re Talbert, 347 B.R. at 810. The Court concludes that all four factors weigh in favor of class certification. First, because of the small individual claims, it makes the most economic sense for the class members to prosecute their cause of action as a class rather than individually. [Finding of Fact No. 17.] Second, the Plaintiffs, on behalf of themselves and those similarly situated, filed this adversary proceeding against Wells Fargo on November 16, 2007. [Finding of Fact No. 1.] Since that date, much litigation concerning the parties has occurred in this Court. The Court is unaware of any other outstanding suits by putative class members against Wells Fargo under the same theory present in this suit. Third, concentrating the litigation of the claims in this Court maximizes judicial efficiency and economy as this Court is already familiar with the facts and the issues in this suit. Fourth and finally, as of the undersigned date, the Court does not anticipate significant difficulties with class management based upon the issues presented and the relief requested. Therefore, because all four factors of Rule 23(b)(3) favor class certification, the proposed class action is the superior method for adjudicating this lawsuit. In addition to the enumerated considerations in Rule 23(b)(3), courts have considered the costs and logistical inconvenience associated with joinder or multiple individual lawsuits in determining whether a class action is superior. See Bywaters v. United States, 196 F.R.D. 458, 470 (E.D.Tex.2000). Further, the greatest indication that a class action would be superior to other available methods of adjudication is a “negative value suit.” Norwood v. Raytheon Co., 237 F.R.D. 581, 604 (W.D.Tex.2006). “A ‘negative value suit’ is a case ‘in which the costs of enforcement in an individual action would exceed" } ]

[ { "docid": "23529611", "title": "", "text": "her past work was fight. The record does not support this allegation. Indeed, our review indicates that the ALJ conducted a careful and complete evaluation of the physical demands of Ms. Brewer’s job at the hearing. In his decision, the .ALJ incorporated the descriptions of Ms. Brewer’s dry cleaning work from her initial Disability Report and from her testimony at the hearing. However, when he compared such information as the heaviest weight she lifts or the amount of time she spends sitting, standing and walking, the ALJ found Ms. Brewer’s testimony at the hearing to be contrary to her written statements. He explicitly found that Ms. Brewer’s earlier written statements were more accurate descriptions of her actual work than her later testimony. It is the responsibility of the ALJ, not of a reviewing court, to resolve conflicting evidence and to make credibility determinations. An ALJ’s credibility ruling will not be disturbed unless it is patently wrong. Diaz, 55 F.3d at 308. The ALJ’s crediting of Ms. Brewer’s contemporaneous statements concerning her job duties and his discounting of her later statements at the hearing were proper. Moreover, the ALJ’s finding that Ms. Brewer’s past work, as the owner and operator of her own dry cleaning establishment, was fight work is supported by substantial evidence in the record. Ms. Brewer’s reliance on the DOT characterization of her job is also misplaced. In the first place, neither Ms. Brewer nor the vocational expert presented the DOT definition of “dry cleaner” to the ALJ for his consideration. Nor was this issue presented to the Appeals Council. Ms. Brewer’s failure to raise the assertion administratively constitutes waiver. Papendick v. Sullivan, 969 F.2d 298, 302 (7th Cir.1992) (declining to consider issues not considered by the Appeals Council), cert. denied, 506 U.S. 1050, 113 S.Ct. 968, 122 L.Ed.2d 124 (1993). However, even if Ms. Brewer had raised the DOT definition as proof that her job required medium strength, she would not have prevailed. In order for Ms. Brewer to show, at step four, that she was unable to perform her past work, she was required to prove" } ]

[ { "docid": "7910409", "title": "", "text": "funds to pay the educational expenses, the widow financially obligated herself as a result of receiving the benefits and was in a worse position than if she had never received the benefits at all. See, 20 C.F.R. 404.509(a)(1) (Example 1). Id. Equity and good conscience do not bar the recovery of overpayment of Social Security benefits from an individual who has failed to show a change in position for the worse or the relinquishment of a valuable right. Milton, 616 F.2d at 974. The fact that the overpayment was purely the fault of the Social Security Administration does not entitle the recipient to keep the overpayment. Broeckert v. Sullivan, 751 F.Supp. 1361, 1363 (W.D.Wis.1990). Banuelos has not alleged that he has relinquished a valuable right, such as welfare, in reliance on the disability payments. The ALJ also determined that Banuelos had not changed his position for the worse by purchasing the home in Mexico; he merely changed the form of the assets. (Tr. at 25.) Banuelos stated on the record that he invested the money in a home in Mexico. (Tr. at 126.) Banuelos contends that this investment represents a detrimental change in his position caused by the overpayment of disability benefits. (PL’s Mot. at 10.) Banuelos argues that the home may not sell, that it may not be worth $98,000, or that it would be grossly unfair to force him to sell the home because he was without fault. (PL’s Mot. at 10 .) Lastly, Banuelos contends that the ALJ made no minimal articulation of his reasons for finding that recovery would not be “against equity and good conscience”. (PL’s Mot. at 11.) However, Banuelos offered no evidence regarding the real estate market in Mexico; instead he relied on the assertion that forcing him to sell the home when he was without fault for the overpayment would offend equity and good conscience. (PL’s Mot. at 10.) Absent any evidence to the contrary, the ALJ reasonably concluded and articulated that Banuelos merely changed the form of the asset and that it would not be against equity and good conscience to" }, { "docid": "23250693", "title": "", "text": "the Constitution of the United States. In appellant’s reply brief, as well as during oral argument, appellant conceded that these arguments were not raised below. We have long held that “[ijssues that a claimant fails to raise before the district court are waived on appeal.” Ehrhart v. Secretary of Health and Human Serv., 969 F.2d 534, 537 n. 4 (7th Cir.1992); see also United States v. Andreas, 150 F.3d 766, 769 (7th Cir.1998) (‘We have held time and again that perfunctory and undeveloped arguments (even constitutional ones) are waived.”). Furthermore, the fact that appellant obtained different counsel for the purposes of filing her appeal does not allow her to raise these arguments before this Court. See Ehrhart, 969 F.2d at 537 n. 6. At oral argument, appellant all but abandoned her constitutional challenges and requested that we examine the claims only as they relate to the proper application of Wisconsin law by the Appeals Council. Because we view appellant’s constitutional challenges as having been waived, we proceed to analyze the factual findings and legal underpinnings behind those claims, and examine whether the district court was correct in granting the Commissioner summary judgment. C. Commissioner’s Evidentiary Findings The district court granted the Commissioner summary judgment, after accepting the magistrate judge’s recommendations that there was substantial evidence to support the Commissioner’s factual findings (and that no error of law was made). Once again, substantial evidence is evidence which a reasonable mind would accept as adequate to support a conclusion, such that where conflicting evidence allows reasonable minds to differ as to whether a claimant is entitled to benefits, the responsibility for that decision rests with the Commissioner. See Binion ex rel. Binion v. Chater, 108 F.3d 780, 782 (7th Cir.1997). Appellant’s specific contention before this Court is that there was not substantial evidence to support the Commissioner’s findings that the Mandeville children were not the natural children of the wage earner. Once more, we must return to Wisconsin law to determine whether the Mandeville children should be considered the natural children of Clay. Wisconsin statutes provide that “[w]henever it is established in" }, { "docid": "7910415", "title": "", "text": "release from prison. Meanwhile, he had used the money on clothing, food, transportation, and daily living expenses. Quinlivan, 916 F.2d at 525. Four years after his release, he again qualified for disability benefits. Id. at 526. However, he was still indebted to the SSA for the previous overpayment of benefits so he was presently ineligible to receive benefits. Id. If the Quinlivan plaintiff had not used the disability benefits to sustain himself he would have qualified for public assistance. Receiving the SSA benefits put the plaintiff in a position where he was unable to obtain any public assistance without first spending the benefits. Banuelos’ position is clearly distinguishable because he has not been forced into a worse position by receiving the benefits. As explained above, Banuelos has not presented evidence supporting his assertion that investing in property in Mexico was a change in position for the worse. The interpretation of the statute that Banuelos urges this court to adopt would defeat the purpose of the statute. Banuelos contends that requiring repayment would be unfair because he was without knowledge of the overpayments. (Pl.’s Mot. at 15.) However, adopting an interpretation of . the phrase “against equity and good conscience” that required a waiver of overpayment whenever the recipient was without knowledge of the overpayment at the time it was received would render superfluous the very portion of the statute at issue. See 42 Ü.S.C. § 404(b). There would no longer be any meaning to the portion of the statue that requires repayment from individuals who are without fault, because by definition those who are “without fault” are unaware of the overpayment. See 20 C.F.R. § 404.507. This is not an interpretation that the Ninth Circuit would support. See Quinlivan, 916 F.2d at 527. Therefore, the court will reject Banuelos’ invitation to expand the definition of “against equity and good conscience” to include the situation at hand. While the court is sympathetic to Banuelos’ situation, the fact remains that he has received money to which he is not entitled. As one court has explained, [i]f you receive something that belongs to" }, { "docid": "7910400", "title": "", "text": "the condo to pay off his credit card debt, to purchase a certificate of deposit in the amount of $19,000, to loan his brother $6,500, to loan a friend $3,000, to meet his living expenses, and to maintain'two ears — one worth $7,000 and the other worth $2,600. (Tr. at 85-86, 97-98.) When Banuelos received notification of the overpayment, he requested a waiver of the overpayment. In a Special Determination Hearing, the SSA found that Banuelos was “without fault” in causing the overpayment of disability benefits. (Tr. at 64.) The SSA absolved Banuelos of the overpayment of benefits to his children. (Tr. at 64.) The SSA did not waive the remaining $26,543 overpayment to Banuelos, finding that recovery would not deprive him of necessary funds to meet ordinary expenses. (Tr. at 64.) Banuelos later requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. at 22.) At the hearing Banuelos testified that his expenses were $1,300 a month, including $695 for rent, $300 for groceries, $50 for utilities, $77 for automobile insurance, and $200 for miscellaneous expenses. (Tr. at 118-122.) Banuelos also testified that he still had liquid assets totaling over $16,000, and that he still owned the home in Mexico. (Tr. at 124-26.) The ALJ found that recovery of the $26,543 would not “defeat the purpose of the Act” or be “against equity and good conscience.” (Tr. at 26.) Therefore, the ALJ did’not waive the overpayment. (Tr. at 26.) The Appeals Council denied Banuelos’ request for review, and Banuelos sought review in this court. (Tr. at 3-4; Pl.’s Mot. at 3.) Banuelos now moves the court to reverse the final determination of the Commissioner that Banuelos is not entitled to a waiver for the overpayment of disability benefits. (PL’s Mot. at 1.) Banuelos asserts that the Commissioner did not have substantial evidence to.conclude that recovery would not defeat the purpose of Title II of the Social Security Act (“the Act”), and that equity and good conscience did not preclude recovery. (PL’s Mot. at 3-4.) In the alternative, Banuelos urges this court to find that the Commissioner’s interpretation of equity" }, { "docid": "7910408", "title": "", "text": "that he lent most of this money to a relative and a friend. (PL’s Mot. at 9; cf. Tr. at 85.) Viewing the evidence in its entirety, the ALJ reasonably concluded that Banuelos has financial resources in excess of $100,000, and that paying the $26,543 would leave Banuelos of being unable to meet his ordinary and necessary living expenses. Thus, it would not defeat the purpose of the Act to recover an overpayment of $26,543 from Banuelos. II. EQUITY AND GOOD CONSCIENCE According to the regulations, a recovery of overpayment offends equity and good conscience when the individual has relinquished a valuable right or changed his position for the worse. Adams, 653 F.Supp. at 254 (citing 20 C.F.R. § 404.509). For example, an individual relinquishes a valuable right if he gives up his only source of employment after SSA erroneously notifies him that he is eligible for benefits. See, 20 C.F.R. 6 404.509(a)(1) (Example 2). When a widow pays for a child to attend private school upon receipt of disability benefits and has no other funds to pay the educational expenses, the widow financially obligated herself as a result of receiving the benefits and was in a worse position than if she had never received the benefits at all. See, 20 C.F.R. 404.509(a)(1) (Example 1). Id. Equity and good conscience do not bar the recovery of overpayment of Social Security benefits from an individual who has failed to show a change in position for the worse or the relinquishment of a valuable right. Milton, 616 F.2d at 974. The fact that the overpayment was purely the fault of the Social Security Administration does not entitle the recipient to keep the overpayment. Broeckert v. Sullivan, 751 F.Supp. 1361, 1363 (W.D.Wis.1990). Banuelos has not alleged that he has relinquished a valuable right, such as welfare, in reliance on the disability payments. The ALJ also determined that Banuelos had not changed his position for the worse by purchasing the home in Mexico; he merely changed the form of the assets. (Tr. at 25.) Banuelos stated on the record that he invested the money" }, { "docid": "23153758", "title": "", "text": "(9th Cir.2002). This is because Any burden of uncertainty created by careless or inaccurate drafting ... must be placed on those who do the drafting, and who are most able to bear that burden, and not on the individual employee, who is powerless to affect the drafting of the summary or the policy and ill equipped to bear the financial hardship that might result from a misleading or confusing document. Accuracy is not a lot to ask. Id. at 1145 (quoting Hansen v. Cont’l Ins. Co., 940 F.2d 971, 982 (5th Cir.1991)). Here, the court is presented with two plans. One plan includes the five-year vesting provision, while the other does not. Because the ERISA plan that includes the five-year vesting provision is more favorable to Banuelos than the plan without the provision, this court must determine whether, as a matter of law, Banuelos is entitled to a pension under the plan that includes the five-year vesting provision. Limiting consideration to the evidence in the administrative record, Ban-uelos’s summary judgment motion should have been granted. As previously noted, section 4.07(e) provides that an employee who has accumulated five years of credited service is entitled to a pension. It is undisputed that Banuelos’s years of credited service total no fewer than six years and no more than seven years. The plan administrator erred in concluding that Ban-uelos must work 501 more hours to receive his pension because of his 1990 break in service. This break in service occurred after Banuelos had completed the five years of service required for vesting. Once an employee has completed the required service for vesting, a subsequent break in service cannot deprive the employee of benefits. See Nachman Corp. v. Pension Ben. Guaranty Corp., 446 U.S. 359, 378 n. 27, 100 S.Ct. 1723, 64 L.Ed.2d 354 (stating that the vesting of a pension means that the receiving of a pension is no longer contingent upon remaining in the employer’s service); see also Martin v. Constr. Laborer’s Pension Trust for S. Cal., 947 F.2d 1381, 1383 (9th Cir.1991) (stating that the pension plan’s break-in-service rules applied only" }, { "docid": "7910411", "title": "", "text": "recover the overpayment. (Tr. at 25.) The ALJ noted that Banuelos could either mortgage or sell the home in order to repay the $26,543.00. (Tr. at 25.) Although Banuelos contends that recovery of the $26,543.00 would be against equity and good conscience, he has failed to meet his burden of showing that he has relinquished a valuable right or changed his position for the worse. Banuelos also contends that his linguistic limitations may have contributed to his detrimental change in position and that the ALJ failed to address his linguistic limitations. (PL’s Mot. at 11.) However, Banuelos has misinterpreted the requirement that a plaintiff’s linguistic limitations be taken into account under the Act. See 20 C.F.R § 404.510. While Banuelos’ difficulty in communicating is relevant to the determination of fault, it is not relevant to whether Banuelos has changed his position for the worse in reliance on the overpayment. See id. III. EQUITY AND GOOD CONSCIENCE RECONSIDERED Lastly, Banuelos invites the court to expand the definition of “against equity and good conscience” by holding the Commissioner’s regulation invalid. (PL’s Mot. at 12-13.) Following the Eighth and Ninth Circuits, Banuelos urges the court to expand the definition of “against equity and good conscience” to include situations beyond those where an individual has relinquished a valuable right or changed their position for the worse. (PL’s Mot at 15-16.) However, the Seventh Circuit has applied the very interpretation of “against equity and good conscience” that Banuelos asks this court to reject. See Milton, 616 F.2d at 974; Benedict v. Director, Office of Workers’ Compensation Programs, 29 F.3d 1140, 1142-43 (7th Cir.1994) (applying the same definition of “against equity and good conscience” in the Worker’s Compensation context). Generally speaking, where Congress has created an administrative agency to administer a program and has delegated authority to the agency to define specific provisions of the pertaining statute by regulation, the regulations are controlling so long as they are not arbitrary, capricious, or contrary to the statute itself. Chevron v. Natural Resources Defense Council, 467 U.S. 837, 843 — 44, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694" }, { "docid": "7910399", "title": "", "text": "1990 Banuelos began receiving Worker’s Compensation benefits. (Tr. at 37, 40-44.) The Social Security Administration (“SSA”) notified him that it determined his disability benefits based upon the amount of Worker’s Compensation benefits he was receiving. (Tr. at 37, 40-44.) However, the SSA had not in fact adjusted his disability benefits to account for his receipt of Worker’s Compensation benefits. (Tr. at 37, 40-44 .) Therefore, SSA overpaid Banuelos and his children a total of $39,-799.00 in disability benefits between November 1990 and July 1993. (Tr. at 62.) Specifically, SSA overpaid Banuelos $26,543 and his two children $6,628 each. (Tr. at 25, 62.) In December 1993, prior to notification of the overpayment, Banuelos received a Worker’s Compensation settlement for $200,000 at a net of about $160,000. (Tr. at 85, 126-29.) Banuelos invested $98,000 of the settlement into a home in Mexico where his sister and parents presently live, rent-free. (Tr. at 85, 126.) In 1994, Banuelos sold a condominium, which netted him an additional $12,000. Banuelos used the money from the settlement and the sale of the condo to pay off his credit card debt, to purchase a certificate of deposit in the amount of $19,000, to loan his brother $6,500, to loan a friend $3,000, to meet his living expenses, and to maintain'two ears — one worth $7,000 and the other worth $2,600. (Tr. at 85-86, 97-98.) When Banuelos received notification of the overpayment, he requested a waiver of the overpayment. In a Special Determination Hearing, the SSA found that Banuelos was “without fault” in causing the overpayment of disability benefits. (Tr. at 64.) The SSA absolved Banuelos of the overpayment of benefits to his children. (Tr. at 64.) The SSA did not waive the remaining $26,543 overpayment to Banuelos, finding that recovery would not deprive him of necessary funds to meet ordinary expenses. (Tr. at 64.) Banuelos later requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. at 22.) At the hearing Banuelos testified that his expenses were $1,300 a month, including $695 for rent, $300 for groceries, $50 for utilities, $77 for automobile insurance, and $200 for" }, { "docid": "7910410", "title": "", "text": "in a home in Mexico. (Tr. at 126.) Banuelos contends that this investment represents a detrimental change in his position caused by the overpayment of disability benefits. (PL’s Mot. at 10.) Banuelos argues that the home may not sell, that it may not be worth $98,000, or that it would be grossly unfair to force him to sell the home because he was without fault. (PL’s Mot. at 10 .) Lastly, Banuelos contends that the ALJ made no minimal articulation of his reasons for finding that recovery would not be “against equity and good conscience”. (PL’s Mot. at 11.) However, Banuelos offered no evidence regarding the real estate market in Mexico; instead he relied on the assertion that forcing him to sell the home when he was without fault for the overpayment would offend equity and good conscience. (PL’s Mot. at 10.) Absent any evidence to the contrary, the ALJ reasonably concluded and articulated that Banuelos merely changed the form of the asset and that it would not be against equity and good conscience to recover the overpayment. (Tr. at 25.) The ALJ noted that Banuelos could either mortgage or sell the home in order to repay the $26,543.00. (Tr. at 25.) Although Banuelos contends that recovery of the $26,543.00 would be against equity and good conscience, he has failed to meet his burden of showing that he has relinquished a valuable right or changed his position for the worse. Banuelos also contends that his linguistic limitations may have contributed to his detrimental change in position and that the ALJ failed to address his linguistic limitations. (PL’s Mot. at 11.) However, Banuelos has misinterpreted the requirement that a plaintiff’s linguistic limitations be taken into account under the Act. See 20 C.F.R § 404.510. While Banuelos’ difficulty in communicating is relevant to the determination of fault, it is not relevant to whether Banuelos has changed his position for the worse in reliance on the overpayment. See id. III. EQUITY AND GOOD CONSCIENCE RECONSIDERED Lastly, Banuelos invites the court to expand the definition of “against equity and good conscience” by holding the" }, { "docid": "7910405", "title": "", "text": "the same time that he received disability benefits. This resulted in the overpayment of disability benefits in the amount of $26,-543. The ALJ agreed with the previous determination that Banuelos was not at fault for causing or accepting the overpayment. (Tr. at 25.) However, the ALJ found that Banuelos still had to repay the $26,543 under the Act. (Tr. at 26.) This court must now determine if substantial evidence supported the ALJ’s conclusion that such recovery would not defeat the purpose of the Act or offend equity and good conscience. I. PURPOSE OF TITLE II Whether recovery of overpayment would defeat the purpose of Title II depends on “whether the person has an income or financial resources sufficient for more than ordinary and necessary needs.” See Milton v. Harris, 616 F.2d 968, 974 (7th Cir.1980). The regulations define a recovery of overpayment that would defeat the purpose of Title II as a recovery depriving a person of income required for ordinary and necessary living expenses. 20 C.F.R. § 404.508. When determining if repayment would defeat the purpose of the Act the court may properly consider the individual’s entire financial resources, including an individual’s savings, interest income, and equity in real estate. Milton, 616 F.2d at 974. In this case, the ALJ concluded that Banuelos had sufficient resources to repay the $26,543 without losing his ability to meet ordinary and necessary living expenses. (Tr. at 25.) Based upon Banuelos’ own testimony, the ALJ determined that his monthly expenses were roughly $1,300 a month including, $695 for rent, $300 for groceries, $50 for utilities, $77 for automobile insurance, and $200 for miscellaneous expenses. (Tr. at 24, 118-22.) Banuelos’ resources include a home in Mexico that he purchased for $98,-000, as well as $16,000 in liquid assets and two cars. (Tr. at 24.) The ALJ also determined that Banuelos sold a condo in 1994 which netted him $12,000. (Tr. at 25.) This court finds that substantial evidence supports the final determination of the Commissioner that recovery of the overpayment would not defeat the purpose of the Act in this case. Banuelos contends that" }, { "docid": "23250692", "title": "", "text": "estate to pass to marital children, in certain circumstances, it also provides that a nonmarital child is entitled to take in the same manner as a marital child by intestate succession. Wis. Stat. § 852.05. Specifically, if a nonmarital child’s father has (1) been adjudicated to be the father in a paternity proceeding under § 767 or by final judgment of a court of competent jurisdiction in another state; or (2) admitted in open court that he is the father; or (3) acknowledged himself to be the father in a writing signed by him, the child takes as a marital child. Id. Therefore, in order to obtain child’s benefits in Wisconsin, the child must be shown to be either a marital child or fall within one of the above categories of nonmarital children. With this background, we now proceed to analyze the merits of this appeal. B. Constitutional Claims As a preliminary matter, we note that much of appellant’s brief is devoted to raising equal protection and due process arguments under the Fifth Amendment of the Constitution of the United States. In appellant’s reply brief, as well as during oral argument, appellant conceded that these arguments were not raised below. We have long held that “[ijssues that a claimant fails to raise before the district court are waived on appeal.” Ehrhart v. Secretary of Health and Human Serv., 969 F.2d 534, 537 n. 4 (7th Cir.1992); see also United States v. Andreas, 150 F.3d 766, 769 (7th Cir.1998) (‘We have held time and again that perfunctory and undeveloped arguments (even constitutional ones) are waived.”). Furthermore, the fact that appellant obtained different counsel for the purposes of filing her appeal does not allow her to raise these arguments before this Court. See Ehrhart, 969 F.2d at 537 n. 6. At oral argument, appellant all but abandoned her constitutional challenges and requested that we examine the claims only as they relate to the proper application of Wisconsin law by the Appeals Council. Because we view appellant’s constitutional challenges as having been waived, we proceed to analyze the factual findings and legal underpinnings" }, { "docid": "7910401", "title": "", "text": "miscellaneous expenses. (Tr. at 118-122.) Banuelos also testified that he still had liquid assets totaling over $16,000, and that he still owned the home in Mexico. (Tr. at 124-26.) The ALJ found that recovery of the $26,543 would not “defeat the purpose of the Act” or be “against equity and good conscience.” (Tr. at 26.) Therefore, the ALJ did’not waive the overpayment. (Tr. at 26.) The Appeals Council denied Banuelos’ request for review, and Banuelos sought review in this court. (Tr. at 3-4; Pl.’s Mot. at 3.) Banuelos now moves the court to reverse the final determination of the Commissioner that Banuelos is not entitled to a waiver for the overpayment of disability benefits. (PL’s Mot. at 1.) Banuelos asserts that the Commissioner did not have substantial evidence to.conclude that recovery would not defeat the purpose of Title II of the Social Security Act (“the Act”), and that equity and good conscience did not preclude recovery. (PL’s Mot. at 3-4.) In the alternative, Banuelos urges this court to find that the Commissioner’s interpretation of equity and good conscience is too narrow. (PL’s Mot. at 11.) The Commissioner moves for summary judgment, arguing that the law and the evidence support the decision of the Commissioner. (Def.’s Mot. at 2.) Analysis On review, the court has the power to modify, affirm, or reverse the decision of the Commissioner if any essential finding of the Administrative Law Judge (“ALJ”) is not supported by substantial evidence. Adams v. Secretary of Health and Human Serv.’s, 653 F.Supp. 249, 250 (C.D.Ill.1986) (citing 42 U.S.C. § 405(g)); Callaghan v. Shalala, 992 F.2d 692, 695 (7th Cir.1993). Where the Appeals Council declines to review a decision of the ALJ, that decision becomes the final decision of the Commissioner. Schroeter v. Sullivan, 977 F.2d 391, 394 (7th Cir.1992). The court must affirm the denial of a request for waiver of repayment if substantial evidence supports the decision and the Commissioner has committed no error of law. Strunk v. Heckler, 732 F.2d 1357, 1359 (7th Cir.1984). “Substantial evidence” is relevant evidence that a reasonable mind would “accept as adequate to" }, { "docid": "22979905", "title": "", "text": "ILANA DIAMOND ROVNER, Circuit Judge. Bonnie Shramek applied for Social Security Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). The focus of her claim for benefits was her history of frequent superficial phlebitis and repeated deep venous thrombophlebi-tis, for which she received approximately forty treatments over a fifteen year period. After a hearing, the Administrative Law Judge (ALJ) denied her claim for benefits at Step 5 of the sequential process. In doing so, the ALJ found that: she was not currently employed (Step 1); she suffered from a severe impairment (Step 2); her impairment did not meet or equal the SSA listings (Step 3); she was not capable of performing her past work (Step 4); and SSA had met its burden of demonstrating that she was capable of performing work in the national economy (Step 5). See Knight v. Chater, 55 F.3d 309, 313 (7th Cir.1995) (explaining the sequential process). In reaching his conclusions at Step 5, the ALJ found that she was capable of doing sedentary work with some restrictions, and that a sufficient number of such positions existed in the economy. The Appeals Council and the district court affirmed that determination, and she now appeals to this Court. Shramek raised a number of issues in this Court as she did in the district court, but unfortunately there is little overlap between the two. Many — if not most — of the issues raised in this appeal were not raised in the district court. Although the failure to assert an argument at the Appeals Council does not operate as a waiver of that claim, Johnson v. Apfel, 189 F.3d 561 (7th Cir.1999), issues that are not raised before the district court are waived on appeal. Ehrhart v. Secretary of Health and Human Services, 969 F.2d 534, 537 & n. 4 (7th Cir.1992); Reynolds v. Bowen, 844 F.2d 451, 453 (7th Cir.1988). A generous reading of the briefs before the district court and this Court yields a few issues that have been preserved, which we will address. Shramek contends that the ALJ erred in crediting the opinion of the" }, { "docid": "7910404", "title": "", "text": "No Recovery from Persons Without Fault In any case in which more than the correct amount of payment has been made, there shall be no adjustment of payments to, or recovery by the United States from, any person who is without fault if such adjustment or recovery would defeat the purpose of this sub-chapter or would be against equity and good conscience. The regulations interpreting the Social Security Act set forth the standards that the court should apply in cases involving the recovery of an overpayment of benefits. To qualify for a waiver of reimbursement under the Social Security Act, a person must show that the overpayment was not their fault and that it would “defeat the purpose of the Act” or be “against equity and good conscience” to require repayment. 20 C.F.R. § 404.506. The plaintiff carries the burden of proof on the issues. Adams, 653 F.Supp. at 250. Banuelos received disability benefits from SSA for the period covering November 1990 to June 1993. (Tr. at 40-44, 69.) Banuelos received Worker’s Compensation benefits at the same time that he received disability benefits. This resulted in the overpayment of disability benefits in the amount of $26,-543. The ALJ agreed with the previous determination that Banuelos was not at fault for causing or accepting the overpayment. (Tr. at 25.) However, the ALJ found that Banuelos still had to repay the $26,543 under the Act. (Tr. at 26.) This court must now determine if substantial evidence supported the ALJ’s conclusion that such recovery would not defeat the purpose of the Act or offend equity and good conscience. I. PURPOSE OF TITLE II Whether recovery of overpayment would defeat the purpose of Title II depends on “whether the person has an income or financial resources sufficient for more than ordinary and necessary needs.” See Milton v. Harris, 616 F.2d 968, 974 (7th Cir.1980). The regulations define a recovery of overpayment that would defeat the purpose of Title II as a recovery depriving a person of income required for ordinary and necessary living expenses. 20 C.F.R. § 404.508. When determining if repayment would defeat" }, { "docid": "7910406", "title": "", "text": "the purpose of the Act the court may properly consider the individual’s entire financial resources, including an individual’s savings, interest income, and equity in real estate. Milton, 616 F.2d at 974. In this case, the ALJ concluded that Banuelos had sufficient resources to repay the $26,543 without losing his ability to meet ordinary and necessary living expenses. (Tr. at 25.) Based upon Banuelos’ own testimony, the ALJ determined that his monthly expenses were roughly $1,300 a month including, $695 for rent, $300 for groceries, $50 for utilities, $77 for automobile insurance, and $200 for miscellaneous expenses. (Tr. at 24, 118-22.) Banuelos’ resources include a home in Mexico that he purchased for $98,-000, as well as $16,000 in liquid assets and two cars. (Tr. at 24.) The ALJ also determined that Banuelos sold a condo in 1994 which netted him $12,000. (Tr. at 25.) This court finds that substantial evidence supports the final determination of the Commissioner that recovery of the overpayment would not defeat the purpose of the Act in this case. Banuelos contends that although he purchased the home in Mexico for $98,000 “the home would probably not realize [that] amount.” (Pl.’s Mot. at 8-9.) The court can not reverse the Commissioner’s finding based upon a possibility that is not supported by evidence in the record. Banuelos has the burden of offering evidence that could support a finding that repayment would defeat the purpose of the Act; absent any. such evidence the Commissioner’s final determination must stand. See Adams, 653 F.Supp. at 250. Banuelos also contends that the ALJ incorrectly characterized the $12,000 he netted from the sale of his condo as a profit. (Pl.’s Mot. at 9.) Banuelos asserts that it was merely a return of capital. (PI .’s Mot. at 9.) However, this distinction has no bearing on the issue here. If Banuelos received $12,000 from the sale of his condo, it makes no difference to the calculation of his resources whether that money was a profit or a return of capital. Banuelos has testified that he used this money for living expenses; however, the record reveals" }, { "docid": "7910416", "title": "", "text": "he was without knowledge of the overpayments. (Pl.’s Mot. at 15.) However, adopting an interpretation of . the phrase “against equity and good conscience” that required a waiver of overpayment whenever the recipient was without knowledge of the overpayment at the time it was received would render superfluous the very portion of the statute at issue. See 42 Ü.S.C. § 404(b). There would no longer be any meaning to the portion of the statue that requires repayment from individuals who are without fault, because by definition those who are “without fault” are unaware of the overpayment. See 20 C.F.R. § 404.507. This is not an interpretation that the Ninth Circuit would support. See Quinlivan, 916 F.2d at 527. Therefore, the court will reject Banuelos’ invitation to expand the definition of “against equity and good conscience” to include the situation at hand. While the court is sympathetic to Banuelos’ situation, the fact remains that he has received money to which he is not entitled. As one court has explained, [i]f you receive something that belongs to someone else, you must give it back. Most children learn this fundamental precept of justice and morality before they attend school. Plaintiff would make an exception to this rule where the government owns the property which was undeservedly received. The Court finds no justification for treating the government differently from any other person who mistakenly overpays money. Equity does not permit the person to retain funds to which she has no entitlement simply because the person who paid the funds made a mistake in doing so. The Court emphatically rejects the ‘finders keepers, losers weepers’ philosophy which plaintiff improperly characterizes as a precept of justice and morality. Broeckert, 751 F.Supp. at 1363. Except in the situations already provided for in the statute and regulations, this court agrees that an overpayment of benefits must be repaid.- Conclusion For the reasons set forth above, the court denies Banuelos’ motion to reverse the decision of the Commissioner, grants the Commissioner’s motion for summary judgment, and affirms the final decision of the Commissioner. . Throughout this Memorandum Opinion and" }, { "docid": "7910398", "title": "", "text": "MEMORANDUM OPINION AND ORDER ANN CLAIRE WILLIAMS, District Judge. Plaintiff Alberto Banuelos asks this court to reverse the decision of the Commissioner of Social Security that Banuelos is not entitled to a waiver of overpayment of disability benefits under the Social Security Act. Defendant Shirley S. Chater, Commissioner of Social Security (“Commissioner”), moves the court to grant summary judgment in her favor. This court has jurisdiction to review the final decision of the Commissioner under 42 U.S.C. § 405(g). For the reasons set forth below, the court denies Banuelos’ motion, grants the Commissioner’s motion, and affirms the final decision of the Commissioner. Background The following facts are taken fi-om the pleadings and the record as a whole. Plaintiff Alberto Banuelos was injured at his place of employment in 1989, and began receiving disability benefits Title II of the Social Security Act, 42 U.S.C. § 404(b), in 1990. (Tr. at 24.) At the time Banuelos filed for disability, he notified Social Security of his intention to file for Worker’s Compensation benefits. (Tr. at 33.) In November 1990 Banuelos began receiving Worker’s Compensation benefits. (Tr. at 37, 40-44.) The Social Security Administration (“SSA”) notified him that it determined his disability benefits based upon the amount of Worker’s Compensation benefits he was receiving. (Tr. at 37, 40-44.) However, the SSA had not in fact adjusted his disability benefits to account for his receipt of Worker’s Compensation benefits. (Tr. at 37, 40-44 .) Therefore, SSA overpaid Banuelos and his children a total of $39,-799.00 in disability benefits between November 1990 and July 1993. (Tr. at 62.) Specifically, SSA overpaid Banuelos $26,543 and his two children $6,628 each. (Tr. at 25, 62.) In December 1993, prior to notification of the overpayment, Banuelos received a Worker’s Compensation settlement for $200,000 at a net of about $160,000. (Tr. at 85, 126-29.) Banuelos invested $98,000 of the settlement into a home in Mexico where his sister and parents presently live, rent-free. (Tr. at 85, 126.) In 1994, Banuelos sold a condominium, which netted him an additional $12,000. Banuelos used the money from the settlement and the sale of" }, { "docid": "7910403", "title": "", "text": "support a conclusion.” Angevine v. Sullivan, 881 F.2d 519, 521 (7th Cir.1989) (quoting Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). The reviewing court may not substitute its own judgment for that of the ALJ or reweigh the evidence; nor may the court simply rubber-stamp the ALJ’s decision. Schroeter, 977 F.2d at 394; Cass v. Shalala, 8 F.3d 552, 555 (7th Cir.1993). The court must review the record in its entirety, not just the evidence that supports the Commissioner’s decision. Bauzo v. Bowen, 803 F.2d 917, 923 (7th Cir.1986). However, where reasonable minds could differ in construing the evidence, the court must defer to the Commissioner’s decision. Angevine, 881 F.2d at 521. A specific statute, 42 U.S.C. § 404, covers overpayments of Social Security benefits: (a) Procedure for Adjustment or Recovery Whenever the Secretary finds that more or less than the correct amount of payment has been made to any person under this subchapter, proper adjustment or recovery shall be made, under regulations prescribed by the Secretary, as follows: (b) No Recovery from Persons Without Fault In any case in which more than the correct amount of payment has been made, there shall be no adjustment of payments to, or recovery by the United States from, any person who is without fault if such adjustment or recovery would defeat the purpose of this sub-chapter or would be against equity and good conscience. The regulations interpreting the Social Security Act set forth the standards that the court should apply in cases involving the recovery of an overpayment of benefits. To qualify for a waiver of reimbursement under the Social Security Act, a person must show that the overpayment was not their fault and that it would “defeat the purpose of the Act” or be “against equity and good conscience” to require repayment. 20 C.F.R. § 404.506. The plaintiff carries the burden of proof on the issues. Adams, 653 F.Supp. at 250. Banuelos received disability benefits from SSA for the period covering November 1990 to June 1993. (Tr. at 40-44, 69.) Banuelos received Worker’s Compensation benefits at" }, { "docid": "7910402", "title": "", "text": "and good conscience is too narrow. (PL’s Mot. at 11.) The Commissioner moves for summary judgment, arguing that the law and the evidence support the decision of the Commissioner. (Def.’s Mot. at 2.) Analysis On review, the court has the power to modify, affirm, or reverse the decision of the Commissioner if any essential finding of the Administrative Law Judge (“ALJ”) is not supported by substantial evidence. Adams v. Secretary of Health and Human Serv.’s, 653 F.Supp. 249, 250 (C.D.Ill.1986) (citing 42 U.S.C. § 405(g)); Callaghan v. Shalala, 992 F.2d 692, 695 (7th Cir.1993). Where the Appeals Council declines to review a decision of the ALJ, that decision becomes the final decision of the Commissioner. Schroeter v. Sullivan, 977 F.2d 391, 394 (7th Cir.1992). The court must affirm the denial of a request for waiver of repayment if substantial evidence supports the decision and the Commissioner has committed no error of law. Strunk v. Heckler, 732 F.2d 1357, 1359 (7th Cir.1984). “Substantial evidence” is relevant evidence that a reasonable mind would “accept as adequate to support a conclusion.” Angevine v. Sullivan, 881 F.2d 519, 521 (7th Cir.1989) (quoting Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). The reviewing court may not substitute its own judgment for that of the ALJ or reweigh the evidence; nor may the court simply rubber-stamp the ALJ’s decision. Schroeter, 977 F.2d at 394; Cass v. Shalala, 8 F.3d 552, 555 (7th Cir.1993). The court must review the record in its entirety, not just the evidence that supports the Commissioner’s decision. Bauzo v. Bowen, 803 F.2d 917, 923 (7th Cir.1986). However, where reasonable minds could differ in construing the evidence, the court must defer to the Commissioner’s decision. Angevine, 881 F.2d at 521. A specific statute, 42 U.S.C. § 404, covers overpayments of Social Security benefits: (a) Procedure for Adjustment or Recovery Whenever the Secretary finds that more or less than the correct amount of payment has been made to any person under this subchapter, proper adjustment or recovery shall be made, under regulations prescribed by the Secretary, as follows: (b)" }, { "docid": "7910407", "title": "", "text": "although he purchased the home in Mexico for $98,000 “the home would probably not realize [that] amount.” (Pl.’s Mot. at 8-9.) The court can not reverse the Commissioner’s finding based upon a possibility that is not supported by evidence in the record. Banuelos has the burden of offering evidence that could support a finding that repayment would defeat the purpose of the Act; absent any. such evidence the Commissioner’s final determination must stand. See Adams, 653 F.Supp. at 250. Banuelos also contends that the ALJ incorrectly characterized the $12,000 he netted from the sale of his condo as a profit. (Pl.’s Mot. at 9.) Banuelos asserts that it was merely a return of capital. (PI .’s Mot. at 9.) However, this distinction has no bearing on the issue here. If Banuelos received $12,000 from the sale of his condo, it makes no difference to the calculation of his resources whether that money was a profit or a return of capital. Banuelos has testified that he used this money for living expenses; however, the record reveals that he lent most of this money to a relative and a friend. (PL’s Mot. at 9; cf. Tr. at 85.) Viewing the evidence in its entirety, the ALJ reasonably concluded that Banuelos has financial resources in excess of $100,000, and that paying the $26,543 would leave Banuelos of being unable to meet his ordinary and necessary living expenses. Thus, it would not defeat the purpose of the Act to recover an overpayment of $26,543 from Banuelos. II. EQUITY AND GOOD CONSCIENCE According to the regulations, a recovery of overpayment offends equity and good conscience when the individual has relinquished a valuable right or changed his position for the worse. Adams, 653 F.Supp. at 254 (citing 20 C.F.R. § 404.509). For example, an individual relinquishes a valuable right if he gives up his only source of employment after SSA erroneously notifies him that he is eligible for benefits. See, 20 C.F.R. 6 404.509(a)(1) (Example 2). When a widow pays for a child to attend private school upon receipt of disability benefits and has no other" } ]

[ { "docid": "9771133", "title": "", "text": "motion. Because we are being asked to determine if Doe’s sentence was imposed in violation of law, jurisdiction is proper under § 3742(a)(1). III. We now address the issue of whether the district court erred in considering factors other than Doe’s substantial assistance to the government in denying the government’s second Rule 35(b) motion. Whether a particular- factor is a permissible basis for departure is an issue of law reviewed de novo. See United States v. Malley, 307 F.3d 1032, 1034 (9th Cir.2002). Rule 35(b) permits the court, upon motion by the government, to reduce a defendant’s sentence for substantially assisting the government. In pertinent part, the rule states that the court “may reduce a sentence to reflect a defendant’s subsequent, substantial assistance in the investigation or prosecution of another person who has committed an offense.... ” Fed. R.Crim.P. 35(b). In this case, Doe argues that the language of Rule 35(b) requires a district court to consider only a defendant’s substantial assistance in deciding whether to reduce a custodial sentence. Because this issue is one of first impression for us, Doe urges this court to adopt the Eleventh Circuit’s reasoning in United States v. Chavarria-Herrara, 15 F.3d 1033 (11th Cir.1994), and hold that a district court may not consider factors other than the defendant’s assistance in contemplating a Rule 35(b) sentencing reduction. In Chavarria-Herrara, the district court granted a reduction based on factors such as the defendant’s status as a first time offender, his lack of involvement in the conspiracy, and his behavior in prison. Id. at 1037. The Eleventh Circuit found that the district court misapplied Rule 35(b) and held that the plain language of the rule precludes a district court from reducing a sentence based on factors other than a defendant’s cooperation. Id. Doe relies upon Chavarria-Herrara and argues that the district court erred when it denied a reduction based on factors such as the nature, extent, and duration of his criminal involvement. However, Doe’s reliance is misplaced since the Eleventh Circuit itself has distinguished Chavarria-Herrara. In Chavarria-Herrara, the district court granted a Rule 35(b) reduction based on" } ]

[ { "docid": "22076988", "title": "", "text": "to what version applies. All guidelines cites herein are to the 1998 version of the guidelines. . With an offense level of 25 and criminal history category I, Martin’s guidelines range would be 57 to 71 months' imprisonment. . The government’s request was framed as a sentence of 42 months' imprisonment. Because Martin's criminal history category is I, the downward departure in this case is reflected in the extent of the reduction in Martin’s offense level. Martin's offense level was 31, and given Martin's criminal history category of I, it takes a reduction of 9 levels, to level 22, to reach a guidelines range of 41-51 months' imprisonment and thus a 42-month sentence. . The district court noted that Martin had not withdrawn from the conspiracy for purposes of the sentencing guidelines because he failed to inform law enforcement officers of the fraud. . The district court observed that Aaron Beam, one of the \"core defendants,” was sentenced to only three months' imprisonment, and unlike Martin, there was no evidence that Beam ever tried to dissuade Scrushy or to withdraw from the conspiracy. . A refusal to depart, however, may be based on factors other than substantial assistance. Luiz, 102 F.3d at 469-70. While a court may reward a defendant only for substantial assistance, the court's decision to grant a § 5K1.1 motion remains discretionary and the court may consider other factors, such as the seriousness of the offense, in refusing to depart. See United States v. Manella, 86 F.3d 201, 204 (11th Cir.1996) (stating that \"the only factor that may militate in favor of a Rule 35(b) reduction is the defendant's substantial assistance,” but \"[n]othing in the text of the rule purports to limit what factors may militate against granting a Rule 35(b) reduction” or \"the factors that may militate in favor of granting a smaller reduction\"); Luiz, 102 F.3d at 469-70 (applying Manella to § 5K1.1 departures). . A 42-month sentence would have amounted to a 9-level departure, or more than a 60 percent departure from the low end of Martin's guidelines range of 108 months’ imprisonment. ." }, { "docid": "23203421", "title": "", "text": "a reduction during resentencing is purely a question of law that we review de novo. United States v. Legree, 205 F.3d 724, 727 (4th Cir .2000). Sentencing courts have the power to reduce the sentence of a defendant who has been sentenced based on a Sentencing Guidelines range that has been subsequently lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). This reduction is applicable in crack cocaine cases after Amendment 706 retroactively reduced the base offense level for most crack-cocaine cases by two levels. U.S.S.G. § lB1.10(c), p.s. Where a defendant’s sentence was within the guideline range applicable at the time of the original sentencing, 18 U.S.C. § 3582(c)(2) precludes a downward departure below the amended guideline range. United States v. Dunphy, 551 F.3d 247, 252 (4th Cir. 2009), cert. denied, — U.S. -, 129 S.Ct. 2401, 173 L.Ed.2d 1296 (2009). On the other hand, where the original sentence falls below the original guideline range, § 3582(c)(2) does not preclude a downward departure below the amended guideline range. Moreover, a district court may depart from the statutory minimum sentence in any instance in which the government has moved for a departure pursuant to § 3553(e). Section 5K1.1 of the Sentencing Guidelines gives the sentencing judge discretion to award an “appropriate reduction” consistent with the non-exclusive list of factors, all related to the nature and quality of a defendant’s assistance. See U.S.S.G. § 5K1.1; United States v. Pearce, 191 F.3d 488, 492 (4th Cir.1999) (holding that under § 5K1.1, a sentencing court may only consider the “nature, extent, and significance” of the defendant’s assistance). This court has never held that a sentencing court must use a specific method in calculating a § 5K1.1 departure. See United States v. Lindsey, 556 F.3d 238, 245 (4th Cir.2009) (explaining that a sentencing court may use a lower offense category, a percentage-based departure or a flat number of months to depart based on substantial assistance). Rather, a sentencing court need only articulate its reasons for departing as it did. See United States v. Bayerle, 898 F.2d 28, 31 (4th Cir.1990). In this case, it" }, { "docid": "5164506", "title": "", "text": "argument that our decision in United States v. Chapman, supra, allows this is incorrect. United States v. Poole, supra, 550 F.3d at 680; see also United States v. Chapman, supra, 532 F.3d at 629; United States v. Doe, supra, 351 F.3d at 933; United States v. Manella, supra, 86 F.3d at 204-05. We cannot think of any basis for treating motions under Rule 35(b)(2) differently. The Grant opinion acknowledges that its position is inconsistent with that of other circuits, including ours: Other circuits that have addressed this issue have tended to conclude that § 3553(a) factors can be considered in Rule 35(b) motions, but only for purposes of reducing the size of a downward departure, never for increasing it. In United States v. Chavarria-Herrara, the Eleventh Circuit held that, in reducing a sentence under Rule 35(b), a district court “may not rely on factors other than the substantial assistance of the defendant.” 15 F.3d 1033 (11th Cir.1994). This holding was premised entirely on “[t]he plain language of Rule 35(b)[, which] indicates that the reduction shall reflect the assistance of the defendant; it does not mention any other factor that may be considered.” Id. at 1037. In United States v. Manella, the Eleventh Circuit modified this rule, holding that it was permissible for a district court to consider factors besides substantial assistance when deciding a Rule 35(b) motion, but only for the purposes of reducing the extent of the downward departure. 86 F.3d at 204-05. That is, a “district court may consider the § 3553(a) factors in order to refuse to grant a Rule 35(b) motion or to grant a smaller reduction than requested by the government. However, in deciding to grant a reduction, the district court may not consider any factor that may militate in favor of the reduction other than the defendant’s substantial assistance.” United States v. Ross, 280 Fed.Appx. 896, 897-98 (11th Cir.2008) (citation omitted). This rule has been adopted by the Ninth Circuit, see Doe, 351 F.3d at 933, and cited approvingly in dicta by the Seventh, see United States v. Poole, 550 F.3d 676, 680 (7th" }, { "docid": "2776191", "title": "", "text": "of a downward departure, if granted. See United States v. Bromberg, 933 F.2d 895, 896 (10th Cir.1991). In an attempt to place her appeal within the confines of § 3742(a)(1), Defendant argues that her sentence was imposed in violation of law because the district court considered a factor other than the assistance she provided to the government in determining her sentence. Rule 35(b) provides that the district court “may reduce a sentence to reflect a defendant’s subsequent substantial assistance ... in accordance with the guidelines ... issued by the Sentencing Commission.” Fed.R.Crim.P. 35(b). Section 5K1.1 of the sentencing guidelines provides for downward departures for substantial assistance and lists five nonexclusive factors the court may consider in determining an appropriate reduction. Defendant argues that the district court's consideration of her role in the offense, a factor not contained in § 5K1.1, was an error of law. The only court to address whether factors other than substantial assistance may be considered by the district court in determining the size of a Rule 35(b) sentence reduction, rejected Defendant's exclusivity argument. See United States v. Manella, 86 F.3d 201, 204-05 (11th Cir.1996) (Rule 35(b) does not prohibit consideration of factors other than the defendant's assistance in deciding to what extent a defendant's sentence should be reduced). For the reasons set forth below, we reject Defendant's argument as well. In this case, the district court granted the Rule 35(b) thotion and reduced Defendant's offense level by two to 29, just as the government recommended. The applicable sentencing range for an offense level of 29 with a criminal history category I, is 87 to 108 months. The district court sentenced Defendant to 97 months, well within this sentencing range. Defendant does not dispute the applicability of the 87 to 108 month sentencing range. Defendant does not argue that the district court erred by granting her a downward departure. Instead, Defendant argues that the district court erred in fixing a particular sentence in the appropriate range. Specifically, Defendant invites us to scrutinize the justification offered by the district court for her 97-month sentence. We lack jurisdiction to" }, { "docid": "23203422", "title": "", "text": "from the statutory minimum sentence in any instance in which the government has moved for a departure pursuant to § 3553(e). Section 5K1.1 of the Sentencing Guidelines gives the sentencing judge discretion to award an “appropriate reduction” consistent with the non-exclusive list of factors, all related to the nature and quality of a defendant’s assistance. See U.S.S.G. § 5K1.1; United States v. Pearce, 191 F.3d 488, 492 (4th Cir.1999) (holding that under § 5K1.1, a sentencing court may only consider the “nature, extent, and significance” of the defendant’s assistance). This court has never held that a sentencing court must use a specific method in calculating a § 5K1.1 departure. See United States v. Lindsey, 556 F.3d 238, 245 (4th Cir.2009) (explaining that a sentencing court may use a lower offense category, a percentage-based departure or a flat number of months to depart based on substantial assistance). Rather, a sentencing court need only articulate its reasons for departing as it did. See United States v. Bayerle, 898 F.2d 28, 31 (4th Cir.1990). In this case, it is evident that the district court did not believe that, during resentencing, it had discretion to use a method other than the precise one apparently used at the initial sentencing in calculating a sentence reduction under Amendment 706. (“I think that I don’t have the discretion.” J.A. 28.). This mistaken belief constitutes reversible procedural error. Sentencing courts are not bound to use one specific method in reducing a defendant’s sentence. In Lindsey, 556 F.3d at 245-46, we explained that a sentencing court may use a lower offense category, a percentage, or a flat number of months, to calculate a departure based on substantial assistance. We now hold that these same methods, or any other reasonable method that results in a comparable reduction, are available to a sentencing court during a resentencing held pursuant to 18 U.S.C. § 3582(c)(2). Indeed, a sentencing court may use any reasonable method in calculating a downward departure during resentencing and is not limited by any specific method previously used. There are several reasons for allowing flexibility in calculating a reduction." }, { "docid": "23012280", "title": "", "text": "requirement that the defendant be rewarded, if at all, only for substantial assistance. Chavarria-Herrara, 15 F.3d at 1037. But a reading of the rule that requires the district court to consider substantial assistance in isolation from any other factor leaves too little discretion for the court to exercise. In this case, the district court weighed several factors against Manella’s substantial assistance, including the seriousness of the offense and the need for the sentence imposed to promote respect for the law and provide just punishment. The district court’s consideration of these factors was based on 18 U.S.C. § 3553, which lists factors that the court is required to consider when imposing a sentence. Rule 35(b) does not prohibit the consideration of these factors in deciding to what extent a defendant’s sentence should be reduced for substantial assistance. AFFIRMED. . United States Sentencing Commission, Guidelines Manual § 5K1.1 (Nov.1987). Substantial assistance that is provided by the defendant prior to sentencing may serve as the basis for a downward departure under U.S.S.G. § 5K1.1 at sentencing. Substantial assistance provided after sentencing may serve as the basis for a sentence reduction under Rule 35(b). United States v. Howard, 902 F.2d 894, 896-97 (11th Cir.1990). . The court explained that it lowered Manella's offense level by one to yield the seven-month reduction. The Government's recommendation would have required a six-level reduction in Manella’s offense level. See U.S.S.G. § 5A (sentencing table). . The second judge noted that the first judge considered Manella's sentence to be lenient. The second judge pointed to the first judge's statement that Manella was \"one of the most culpable people involved in this case, and because you did come forward, I want you to realize that you're getting a real break, that under normal circumstances you’d be spending probably the rest of your life in jail for your culpability in this case. But the court ... will sentence you to a hundred and twenty months----” (R.2 at 15) (transcript of April 1992 sentencing hearing). . 18 U.S.C. § 3742 provides for limited appellate review of “otherwise final sentence[s].\" Only the portion" }, { "docid": "22427581", "title": "", "text": "in violation of the law when it considered the defendants’ prior criminal histories and the seriousness of their offenses in determining the extent of the reductions granted under Rule 35(b).”); Doe, 351 F.3d at 933 (“[A] district court’s consideration of relevant factors other than a defendant’s substantial assistance to the government is a proper exercise of its discretion.”); United States v. Neary, 183 F.3d 1196, 1197-98 (10th Cir.1999) (finding that consideration of other factors when determining the extent of the Rule 35(b) reduction is not facially illegal); United States v. Manella, 86 F.3d 201, 205 (11th Cir.1996) (“Rule 35(b) does not prohibit the consideration of [the § 3553(a) ] factors in deciding to what extent a defendant’s sentence should be reduced for substantial assistance.”). Imposing appropriate sentences requires that courts be able to balance all relevant sentencing factors when determining a defendant’s actual sentence reduction. In view of this necessary balancing, consistent with the support for that proposition throughout the other circuits, we find no error in the district court’s consideration of Davis’ criminal history, the violent nature of the crime of conviction, and the significant reduction he had already received to his advisory Guidelines range when deciding the extent of his sentence reduction after granting the Rule 35(b) motion. IV. Conclusion For the foregoing reasons, the judgment of the district court is affirmed. AFFIRMED. . USSG § 5K1.1 states that \"[u]pon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.” . Although the Government detailed the extent of Davis' cooperation at the hearing on the Rule 35(b) motion, the record does not reflect whether the Government's motion was made based upon cooperation by Davis that occurred prior to his initial sentencing, in the time between sentencing and the Rule 35(b) motion, or both. . The court left Davis’ 36-month sentence on Count One undisturbed, reducing Davis’ consecutive sentence on Count Two from 50 to 36 months. . The issue of whether to dismiss or merely affirm" }, { "docid": "23012279", "title": "", "text": "Id. at 4 (citing Chavarridr-Herrara, 15 F.3d at 1037). Manella is correct that he prevails if we adopt the holding in Yesil II, but we decline to do so. A careful reading of Rule 35(b) reveals that the text does not prohibit the consideration of any factor other than the defendant’s substantial assistance. The rule states that “[t]he court ... may reduce a sentence to reflect a defendant’s subsequent, substantial assistance____” Under this language, the only factor that may militate in favor of a Rule 35(b) reduction is the defendant’s substantial assistance. Nothing in the text of the rule purports to limit what factors may militate against granting a Rule 35(b) reduction. Similarly, the rule does not limit the factors that may militate in favor of granting a smaller reduction. The reading of Rule 35(b) urged by Manella is inconsistent with the principle that the district court’s decision to grant or deny a Rule 35(b) motion is discretionary. It is true that under the current rule, the exercise of that discretion is limited by the requirement that the defendant be rewarded, if at all, only for substantial assistance. Chavarria-Herrara, 15 F.3d at 1037. But a reading of the rule that requires the district court to consider substantial assistance in isolation from any other factor leaves too little discretion for the court to exercise. In this case, the district court weighed several factors against Manella’s substantial assistance, including the seriousness of the offense and the need for the sentence imposed to promote respect for the law and provide just punishment. The district court’s consideration of these factors was based on 18 U.S.C. § 3553, which lists factors that the court is required to consider when imposing a sentence. Rule 35(b) does not prohibit the consideration of these factors in deciding to what extent a defendant’s sentence should be reduced for substantial assistance. AFFIRMED. . United States Sentencing Commission, Guidelines Manual § 5K1.1 (Nov.1987). Substantial assistance that is provided by the defendant prior to sentencing may serve as the basis for a downward departure under U.S.S.G. § 5K1.1 at sentencing. Substantial assistance" }, { "docid": "22702528", "title": "", "text": "by the Sentencing Commission pursuant to section 994 of title 28, United States Code. . Hood argues that our decision in United States v. Allen, 450 F.3d 565 (4th Cir.2006), mandates that a sentence imposed pursuant to a § 3553(e) departure should be measured not just by a defendant's substantial assistance, but also by reference to the § 3553(a) factors and the defendant’s otherwise applicable guidelines range. We have previously held, however, that in determining the extent of a departure below a statutory minimum a district court should look to the substantial assistance factors listed in U.S.S.G. § 5Kl.l(a) United States v. Pillow, 191 F.3d 403, 407 (4th Cir.1999). Moreover, the weight of authority in other circuits undercuts Hood's contention; in short, the extent of a § 3553(e) departure is based solely on the defendant's substantial assistance and other factors related to that assistance. See United States v. Richardson, 521 F.3d 149, 159 (2d Cir.2008) (“When ... the Guidelines sentence ends up as the statutory minimum, both the decision to depart and the maximum permissible extent of this departure below the statutory minimum may be based only on substantial assistance to the government and on no other mitigating considerations”); United States v. Williams, 474 F.3d 1130, 1130-31 (8th Cir.2007) (“Where a court has authority to sentence below a statutory minimum only by virtue of a government motion under § 3553(e), the reduction below the statutory minimum must be based exclusively on assistance-related considerations”); United States v. Desselle, 450 F.3d 179, 182 (5th Cir.2006) (\"We thus join the majority of circuits in holding that the extent of a ... § 3553(e) departure must be based solely on assistance-related concerns”); United States v. Auld, 321 F.3d 861, 867 (9th Cir.2003) (\"[I]n fixing a substantial assistance departure ... [t]he district court may not ... consider factors unrelated to the defendant’s assistance”). . U.S.S.G. § 5Kl.l(a) lists the following nonexclusive reasons for an appropriate sentence reduction: (1)[T]he court’s evaluation of the significance and usefulness of the defendant’s assistance, taking into consideration the government's evaluation of the assistance rendered; (2) the truthfulness, completeness, and reliability" }, { "docid": "22076967", "title": "", "text": "This is not an exhaustive list. The district court may consider other factors, but only if the factors relate to the assistance provided by the defendant. United States v. Crisp, 454 F.3d 1285, 1288-89 (11th Cir.2006) (“[I]n meting out a substantial assistance departure the court may consider factors outside the § 5Kl.l(a) list, but only if they are related to the assistance rendered.”); United States v. Luiz, 102 F.3d 466, 469 (11th Cir.1996) (stating “[w]hen ... a district court grants a downward departure under U.S.S.G. § 5K1.1 ..., the sentence reduction may be based only on factors related to the defendant’s substantial assistance”); United States v. Aponte, 36 F.3d 1050, 1052 (11th Cir.1994); see also U.S.S.G. § 5K1.1 cmt. background (indicating that the focus is on the “nature, extent, and significance” of the defendant’s assistance to the government). Post -Booker, this Court has reiterated that district courts are prohibited from considering sentencing factors unrelated to the nature and extent of a defendant’s assistance in making § 5K1.1 departures. McVay, 447 F.3d at 1355; United States v. Davis, 407 F.3d 1269, 1271 (11th Cir.2005). Further, as explained in McVay, a defendant may not appeal a district court’s refusal to make a § 5K1.1 departure, but if the court departs, we will review the government’s challenge to the extent of a departure under § 5K1.1 for an abuse of discretion. McVay, 447 F.3d at 1353. In addition, even pre-Booker, the extent of a district court’s departure from the guidelines had to be reasonable. Williams v. United States, 503 U.S. 193, 202, 112 S.Ct. 1112, 1120, 117 L.Ed.2d 341 (1992); United States v. Bias, 360 F.3d 1268, 1274 (11th Cir.2004); United States v. Melvin, 187 F.3d 1316, 1322-23 (11th Cir.1999); United States v. Pippin, 903 F.2d 1478, 1485 (11th Cir.1990). When a sentencing court departed from the guidelines, the reviewing court determined the reasonableness of the departure in light of the statutory factors to be considered in imposing a sentence, as stated in 18 U.S.C. § 3553(a), and the reasons the district court provided for departing. Bias, 360 F.3d at 1274; Melvin, 187" }, { "docid": "22702527", "title": "", "text": "brief on September 15, 2008. On that same date, counsel entered an appearance for Brooks and proceeded to have Brooks’ appeal consolidated with Hood’s appeal because both appeals raised the same issue under Amendment 706. The court consolidated the two appeals, and Brooks filed a supplemental formal brief on November 18, 2008. Again, the court heard oral argument on December 2, 2008. We cannot conclude that these processes denied either Hood or Brooks due process. For the reasons given, the district court’s orders denying the motions of Hood and Brooks under 18 U.S.C. § 3582(c)(2) are AFFIRMED. . Section 3553(e) of Title 18 provides: Limited authority to impose a sentence below a statutory minimum. — Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as a minimum sentence so as to reflect a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense. Such sentence shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code. . Hood argues that our decision in United States v. Allen, 450 F.3d 565 (4th Cir.2006), mandates that a sentence imposed pursuant to a § 3553(e) departure should be measured not just by a defendant's substantial assistance, but also by reference to the § 3553(a) factors and the defendant’s otherwise applicable guidelines range. We have previously held, however, that in determining the extent of a departure below a statutory minimum a district court should look to the substantial assistance factors listed in U.S.S.G. § 5Kl.l(a) United States v. Pillow, 191 F.3d 403, 407 (4th Cir.1999). Moreover, the weight of authority in other circuits undercuts Hood's contention; in short, the extent of a § 3553(e) departure is based solely on the defendant's substantial assistance and other factors related to that assistance. See United States v. Richardson, 521 F.3d 149, 159 (2d Cir.2008) (“When ... the Guidelines sentence ends up as the statutory minimum, both the decision to depart and the maximum permissible" }, { "docid": "22945944", "title": "", "text": "the nature and extent of McVay’s assistance. See Luiz, 102 F.3d at 469; cf. United States v. Davis, 407 F.3d 1269, 1271 (11th Cir.2005) (rejecting government’s argument that district court’s grant of § 5K1.1 motion rendered Booker error harmless beyond a reasonable doubt; “The flaw in the Government’s argument is that the grant of § 5K1.1 did not give the sentencing court ‘unfettered’ discretion, but rather, gave the court only limited discretion to consider the assistance that Davis rendered.”). The foregoing prohibition on the consideration of factors unrelated to substantial assistance is consistent with a majority of the courts of appeals that have considered the issue. See, e.g., United States v. Pepper, 412 F.3d 995, 999 (8th Cir.2005) (holding that district court’s consideration of non-assistance-related matters in the context of a § 5K1.1 motion was improper); United States v. Pearce, 191 F.3d 488, 492 (4th Cir.1999) (holding that “any factor considered by the district court on a § 5K1.1 motion must relate to the ‘nature, extent, and significance’ of the defendant’s assistance” (quoting U.S.S.G. § 5K1.1 comment. (backg’d))); United States v. Campbell, 995 F.2d 173, 175 (10th Cir.1993) (holding that “a district court may depart below the minimum sentence set by Congress only to reflect substantial assistance by the defendant”); United States v. Valente, 961 F.2d 133, 134-35 (9th Cir.1992) (rejecting defendant’s argument that “once the court departed below the mandatory minimum sentence pursuant to the government’s [substantial assistance] motion, it was free to depart even further downward based on Valente’s ‘aberrant’ behavior”); United States v. Thomas, 930 F.2d 526, 529 (7th Cir.1991) (holding that “only factors relating to a defendant’s cooperation should influence the extent of a departure for providing substantial assistance under § 3553(e)”), overruled on other grounds by United States v. Canoy, 38 F.3d 893, 903-07 (7th Cir.1994). Indeed, the assistance-related limitation on a district court’s consideration of a § 5K1.1 motion formed the basis for our post-Booker reversal and remand for resentencing in Davis, in which we held that a § 5K1.1 motion does not render a Booker error harmless because a sentencing court is limited" }, { "docid": "22945942", "title": "", "text": "sentencing judge to reduce a sentence based on “variable relevant factors.” U.S.S.G. § 5K1.1' comment, (backg’d). “The sentencing judge must, however, state the reasons for reducing a sentence under this section.” Id. (citing 18 U.S.C. § 3553(c)). Thus, it is clear the Guidelines contemplate a substantial-assistance determination that is individualized to the defendant based on the relevant factors and more specific than a simple statement that the reduction is based on the defendant’s substantial assistance. Moreover, the commentary to § 5K1.1 requires the sentencing court to give “[s]ub-stantial weight ... to the government’s evaluation of the extent of the defendant’s assistance.” U.S.S.G. § 5K1.1, comment. (n.3). The only individualized analysis that we can discern in the instant sentencing calculation was the PSI’s and the district court’s vague references to McVay’s “exemplary record” and “relationship with his daughter” as supporting the § 5K1.1 downward departure. However, we have made clear that “[w]hen, on the Government’s motion, a district court grants a downward departure under U.S.S.G. § 5K1.1 or reduces a sentence under Rule 35(b), the sentence reduction may be based only on factors related to the defendant’s substantial assistance.” Luiz, 102 F.3d at 469 (emphasis added); see also United States v. Aponte, 36 F.3d 1050, 1052 (11th Cir.1994) (holding that a court, in considering a § 5K1.1 motion to depart below a statutory minimum, should only consider factors relative to a defendant’s substantial assistance); cf. United States v. Chavarria-Herrara, 15 F.3d 1033, 1037 (11th Cir.1994) (reversing Rule 35(b) substantial-assistance departure, where district court considered factors such as the defendant’s first-time offender status and good prison behavior in reducing his sentence). Thus, the district court’s consideration of McVay’s “exemplary record” and “the situation with his daughter,” in the context of a § 5K1.1 substantial-assistance departure, was error as a matter of law and must be reversed. Simply put, although the sentencing court had discretion under § 5K1.1 to decide (1) whether to depart from the guidelines based on substantial assistance, and (2) if so, the reasonable extent of that departure, plainly it did not have discretion to consider factors altogether unrelated to" }, { "docid": "22427582", "title": "", "text": "the violent nature of the crime of conviction, and the significant reduction he had already received to his advisory Guidelines range when deciding the extent of his sentence reduction after granting the Rule 35(b) motion. IV. Conclusion For the foregoing reasons, the judgment of the district court is affirmed. AFFIRMED. . USSG § 5K1.1 states that \"[u]pon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.” . Although the Government detailed the extent of Davis' cooperation at the hearing on the Rule 35(b) motion, the record does not reflect whether the Government's motion was made based upon cooperation by Davis that occurred prior to his initial sentencing, in the time between sentencing and the Rule 35(b) motion, or both. . The court left Davis’ 36-month sentence on Count One undisturbed, reducing Davis’ consecutive sentence on Count Two from 50 to 36 months. . The issue of whether to dismiss or merely affirm upon holding that the sentence was not imposed in violation of law was neither briefed nor raised by the parties in this case. Because, pursuant to Ruiz, we have jurisdiction over the merits of the appeal (at least for the purposes of determining our jurisdiction), we proceed to affirm as the proper disposition in this case. . There are three unpublished Fourth Circuit cases upholding a district court’s authority to consider factors other than the defendant’s substantial assistance in determining the extent of any reduction in sentence under a granted Rule 35(b) motion. See United States v. Woodward, 245 Fed.Appx. 320, 323 (4th Cir.2007) (unpublished) (\"Thus, the sentencing court may not grant a substantial assistance departure or augment such a departure based on factors other than assistance, but it may consider other factors to limit the departure.’’) (emphasis added) (quoting Doe, 351 F.3d at 932-33); United States v. Lindsay, 254 Fed.Appx. 168, 169-70 (4th Cir.2007) (same); United States v. McFarlin, 416 Fed.Appx. 301, 302 (4th Cir.2011) (same). These opinions are not binding precedent. See 4th" }, { "docid": "22945943", "title": "", "text": "reduction may be based only on factors related to the defendant’s substantial assistance.” Luiz, 102 F.3d at 469 (emphasis added); see also United States v. Aponte, 36 F.3d 1050, 1052 (11th Cir.1994) (holding that a court, in considering a § 5K1.1 motion to depart below a statutory minimum, should only consider factors relative to a defendant’s substantial assistance); cf. United States v. Chavarria-Herrara, 15 F.3d 1033, 1037 (11th Cir.1994) (reversing Rule 35(b) substantial-assistance departure, where district court considered factors such as the defendant’s first-time offender status and good prison behavior in reducing his sentence). Thus, the district court’s consideration of McVay’s “exemplary record” and “the situation with his daughter,” in the context of a § 5K1.1 substantial-assistance departure, was error as a matter of law and must be reversed. Simply put, although the sentencing court had discretion under § 5K1.1 to decide (1) whether to depart from the guidelines based on substantial assistance, and (2) if so, the reasonable extent of that departure, plainly it did not have discretion to consider factors altogether unrelated to the nature and extent of McVay’s assistance. See Luiz, 102 F.3d at 469; cf. United States v. Davis, 407 F.3d 1269, 1271 (11th Cir.2005) (rejecting government’s argument that district court’s grant of § 5K1.1 motion rendered Booker error harmless beyond a reasonable doubt; “The flaw in the Government’s argument is that the grant of § 5K1.1 did not give the sentencing court ‘unfettered’ discretion, but rather, gave the court only limited discretion to consider the assistance that Davis rendered.”). The foregoing prohibition on the consideration of factors unrelated to substantial assistance is consistent with a majority of the courts of appeals that have considered the issue. See, e.g., United States v. Pepper, 412 F.3d 995, 999 (8th Cir.2005) (holding that district court’s consideration of non-assistance-related matters in the context of a § 5K1.1 motion was improper); United States v. Pearce, 191 F.3d 488, 492 (4th Cir.1999) (holding that “any factor considered by the district court on a § 5K1.1 motion must relate to the ‘nature, extent, and significance’ of the defendant’s assistance” (quoting U.S.S.G. §" }, { "docid": "23012276", "title": "", "text": "issues is subject to de novo review. United States v. Robinson, 935 F.2d 201, 205 (11th Cir.1991), cert. denied, 502 U.S. 1037, 112 S.Ct. 885, 116 L.Ed.2d 789 (1992). Rule 35(b) is the mechanism by which a district court may, on the Government’s motion, reduce a sentence to reflect substantial assistance provided by the defendant to the Government after sentencing. Our interpretation of Rule 35(b) begins with the relevant portion of its text: Reduction of Sentence for Changed Circumstances. The court, on motion of the Government made within one year after the imposition of the sentence, may reduce a sentence to reflect a defendant’s subsequent, substantial assistance in the investigation or prosecution of another person who has committed an offense, in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code____ See Boca Ciega Hotel Inc. v. Bouchard Transp. Co., 51 F.3d 235, 237 (11th Cir.1995) (stating that the interpretation of a statute begins with its text). In Chavarria-Herrara, we held that the district court misapplied Rule 35(b) when it granted a reduction that was based in part on factors other than the defendant’s substantial assistance, including the defendant’s first-time offender status, relative culpability, and good prison behavior. 15 F.3d at 1037; see United States v. Aponte, 36 F.3d 1050, 1051 (11th Cir.1994) (applying the rule from Chavarria-Herrara in the context of a downward departure pursuant to 18 U.S.C. § 3553(e)). Our decision in Chavarria-Herrara was grounded in the language of the rule: “The plain language of Rule 35(b) indicates that the reduction shall reflect the assistance of the defendant; it does not mention any other factor that may be considered.” 15 F.3d at 1037. Manella argues that, under Chavarria-Herrara, the defendant’s substantial assistance is the sole factor that the district court may consider on a Rule 35(b) motion. He contends that the court erred when it considered other factors that militated against a reduction in his case. But the facts in Chavarria-Herrara are distinguishable from this case. In Chavarria-Herrara, the district court’s reduction of a sentence was" }, { "docid": "23258326", "title": "", "text": "subjected to significant risk of injury or death to themselves or their family.” United States v. Haack, 403 F.3d 997, 1005-06 (8th Cir.2005). Desselle did not follow instructions from the FBI agents with whom he dealt and provided little helpful information. These are clearly not the “extraordinary circumstances” required to support a departure of sixty-seven percent. CONCLUSION We VACATE and REMAND Desselle’s sentence for resentencing in a manner consistent with § 5K1.1, this opinion, and the Supreme Court’s decision in Booker. VACATED AND REMANDED. . See, e.g., United States v. Pepper, 412 F.3d 995, 998 (8th Cir.2005) (even though § 5K1.1 provides a non-exhaustive list of factors to consider, the maxim that words are known by their companions requires that any additional factors a district court uses must be related to the defendant’s assistance); United States v. Davis, 407 F.3d 1269, 1271 (11th Cir.2005) (“While the sentencing court had discretion under § 5K1.1 in deciding whether to depart from the guidelines and the extent of that departure, it did not have the discretion to consider factors unrelated to the nature and type of [the defendant’s] assistance.”); United States v. Bullard, 390 F.3d 413, 416 (6th Cir.2004) (so holding); United States v. Auld, 321 F.3d 861, 867 (9th Cir.2003) (same); United States v. Pearce, 191 F.3d 488, 492 (4th Cir.1999) (same); United States v. Thomas, 11 F.3d 732, 737 (7th Cir.1994) (\"[A] downward departure from the statutory minimum sentence for any purpose other than that provided in U.S.S.G. § 5K1.1 would conflict with and therefore violate the statute [§ 3553(e)].”); United States v. Campbell, 995 F.2d 173, 175 (10th Cir.1993) (so holding); United States v. Mariano, 983 F.2d 1150, 1156 (1st Cir.1993) (\"While the Commission's list is representative rather than exclusive, the five enumerated factors should be considered the mother lode of substantial assistance inquiries .... As a basis for departing, a court may consider mitigating factors only to the extent that they can fairly be said to touch upon the degree, efficacy, timeliness, and circumstances of a defendant’s cooperation.”). But see United States v. Carey, 382 F.3d 387, 391 (3d" }, { "docid": "5164505", "title": "", "text": "sentencing that had not received judicial consideration of relevant factors was the proposed reduction in his original sentence for assisting the government long after he was sentenced. We have rejected the “ratchet” argument in the related contexts of motions for reduction of sentence under 18 U.S.C. § 3553(e), see United States v. Thomas, 11 F.3d 732, 737 (7th Cir.1993); cf. United States v. Poland, supra, 562 F.3d at 40-41, and under 18 U.S.C. § 3582(c), United States v. Cunningham, 554 F.3d 703, 708 (7th Cir.2009). The first of these sections provides, as we noted earlier, for a sentence reduction below a mandatory minimum, and the second for reductions to reflect certain changes to the sentencing levels set by the Sentencing Commission. In both these statutory settings we have held that the authority to reduce the sentence does not allow a full resentencing. Even though section 3582(c) directs the judge to consider the section 3553(a) factors, he may do so only in deciding whether to grant a sentencing reduction less than the maximum allowed. The defendant’s argument that our decision in United States v. Chapman, supra, allows this is incorrect. United States v. Poole, supra, 550 F.3d at 680; see also United States v. Chapman, supra, 532 F.3d at 629; United States v. Doe, supra, 351 F.3d at 933; United States v. Manella, supra, 86 F.3d at 204-05. We cannot think of any basis for treating motions under Rule 35(b)(2) differently. The Grant opinion acknowledges that its position is inconsistent with that of other circuits, including ours: Other circuits that have addressed this issue have tended to conclude that § 3553(a) factors can be considered in Rule 35(b) motions, but only for purposes of reducing the size of a downward departure, never for increasing it. In United States v. Chavarria-Herrara, the Eleventh Circuit held that, in reducing a sentence under Rule 35(b), a district court “may not rely on factors other than the substantial assistance of the defendant.” 15 F.3d 1033 (11th Cir.1994). This holding was premised entirely on “[t]he plain language of Rule 35(b)[, which] indicates that the reduction shall" }, { "docid": "3725932", "title": "", "text": "defendant’s “aberrant behavior”); United States v. Thomas, 930 F.2d 526, 529 (7th Cir.1991) (concluding that “§ 5K1.1 permits departure only on the basis of the quality of assistance rendered”), overruled on other grounds by United States v. Canoy, 38 F.3d 893 (7th Cir.1994). The procedural mechanism that permits reviewing courts to monitor these limitations is the requirement that the sentencing court state its reasons for any departure pursuant to a motion under § 5K1.1. See 18 U.S.C. § 3553(c)(2); U.S.S.G. § 5K1.1, comment, (backg’d). In addition to these statutory restrictions on a district court’s discretion in deciding whether and to what extent to grant a § 5K1.1 motion to depart downward, the district court is in every instance required to act reasonably as to the extent of its downward departure. As we noted in United States v. Wilson, 896 F.2d 856 (4th Cir.1990), while there is no fixed limit on how many levels a court may depart for substantial assistance by the defendant, “the limit of the district court’s discretion is the question of whether or not the sentence imposed was reasonable.” Id. at 859. “The reasonableness determination looks to the amount and extent of the departure in light of the grounds for departing.” Williams v. United States, 503 U.S. 193, 203, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992). A sentence, however, can be upheld on appeal as reasonable “even if some of the reasons given by the district court to justify the departure from the presumptive guideline range are invalid, provided that the remaining reasons are sufficient to justify the magnitude of the departure.” Id. at 204, 112 S.Ct. 1112. The sentencing court, when deciding the government’s motion to depart downward pursuant to U.S.S.G. § 5K1.1, thus faces two distinct limitations on its otherwise broad discretion. First, it may only consider the nature, extent, and significance of the defendant’s assistance, and second, the extent of any departure must be reasonable. III. PEARCE’S SENTENCE When the district court sentenced Pearce to ten months imprisonment, it did not state the specific reasons on which it based its decision. This omission itself" }, { "docid": "23012277", "title": "", "text": "district court misapplied Rule 35(b) when it granted a reduction that was based in part on factors other than the defendant’s substantial assistance, including the defendant’s first-time offender status, relative culpability, and good prison behavior. 15 F.3d at 1037; see United States v. Aponte, 36 F.3d 1050, 1051 (11th Cir.1994) (applying the rule from Chavarria-Herrara in the context of a downward departure pursuant to 18 U.S.C. § 3553(e)). Our decision in Chavarria-Herrara was grounded in the language of the rule: “The plain language of Rule 35(b) indicates that the reduction shall reflect the assistance of the defendant; it does not mention any other factor that may be considered.” 15 F.3d at 1037. Manella argues that, under Chavarria-Herrara, the defendant’s substantial assistance is the sole factor that the district court may consider on a Rule 35(b) motion. He contends that the court erred when it considered other factors that militated against a reduction in his case. But the facts in Chavarria-Herrara are distinguishable from this case. In Chavarria-Herrara, the district court’s reduction of a sentence was based on factors other than cooperation. In Manella’s case, the district court’s refusal to reduce a sentence by the requested amount was based on factors other than cooperation. While relevant to our reading of Rule 35(b), Chavarria-Herrara does not control the issue presently before us. Manella also cites an unpublished opinion of this court in support of his reading of Rule 35(b). This court is not bound by its unpublished opinions, but they are persuasive authority. 11th Cir.R. 36-2. In United States v. Yesil (“Yesil II”), as in Manella’s case, the case was remanded to a second district judge for a Rule 35(b) evidentiary hearing. No. 93-2499, unpublished at 2-3, 48 F.3d 534 (11th Cir. Feb. 8, 1995). At the Rule 35(b) hearing, the second judge concluded that the defendants’ sentences were “exceedingly lenient,” and took this factor into account in determining the extent of the substantial assistance reduction granted. On appeal, we reversed and remanded with instructions for the district court to consider only the defendants’ substantial assistance in making the Rule 35(b) determination." } ]

[ { "docid": "5501756", "title": "", "text": "on the basis of collateral estoppel. While this rationale appears reasonable and logical in light of recent developments in the concept of collateral estoppel, the law of North Dakota does not appear to support this approach as apparently North Dakota still requires privity for the offensive use of collateral estoppel. Since Kuehn was not a party to the disciplinary proceeding, and was not in privity with the Grievance Committee of the Supreme Court of North Dakota, under North Dakota law she may not benefit from the application of collateral estoppel. III The district court in a diversity action must apply substantive state law as formulated by the forum state. Angel v. Bullington, 330 U.S. 183, 186-87, 67 S.Ct. 657, 91 L.Ed. 832 (1947); Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); National Lead Co. v. Nulsen, 131 F.2d 51, 56 (8th Cir. 1942), cert. denied, 318 U.S. 758, 63 S.Ct. 533, 87 L.Ed. 1131 (1943). Both collateral estoppel and res judicata are issues of substantive law requiring the application of the state common law. See Guaranty Trust Co. v. York, 326 U.S. 99, 109, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945). Until recently, the scope of collateral es-toppel was uniformly limited by the doctrine of mutuality. Under the doctrine, neither party or their privies could use a prior judgment as an estoppel against the other unless both parties or their privies were bound by the judgment. The mutuality requirement often provided a party who had litigated and lost in a previous action an opportunity to relitigate identical issues with new parties. As a result, the doctrine of mutuality has been subjected to severe criticism and rejection by courts and commentators. See, e. g., Bernhard v. Bank of America National Trust & Savings Association, 19 Cal.2d 807, 812, 122 P.2d 892, 895 (1945). The United States Supreme Court, in Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 349-50, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971), rejected the requirement of mutuality in the defensive use of collateral estop-pel, thereby estopping a plaintiff from" } ]

[ { "docid": "10015226", "title": "", "text": "32, 35-36 (1988). In this regard, the United States Court of Appeals for the Federal Circuit has stated the relevant test for issue preclusion: The doctrine of collateral estoppel, also called issue preclusion, bars parties to a prior lawsuit from relitigating any issues that were actually and necessarily determined by a court of competent jurisdiction in the prior suit. Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326 n. 5, 99 S.Ct. 645, 649 n. 5, 58 L.Ed.2d 552 (1979). The doctrine serves “the dual purpose of protecting litigants from the burden of re-litigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation.” Id. at 326, 99 S.Ct. at 649. Affording a litigant more than one full and fair opportunity for judicial resolution of the same issue results in an untenable misallocation of resources. Blonder-Tongue Labs., Inc. v. University of Ill. Found., 402 U.S. 313, 328-29, 91 S.Ct. 1434, 1442-43, 28 L.Ed.2d 788 (1971). Collateral estoppel is appropriate only if: (1) the issue to be decided is identical to one decided in the first action; (2) the issue was actually litigated in the first action; (3) resolution of the issue was essential to a final judgment in the first action; and (4) the parties had a full and fair opportunity to litigate the issue in the first action. Mother’s Restaurant, Inc. v. Mama’s Pizza, Inc., 723 F.2d 1566, 1569, 221 USPQ 394, 397 (Fed.Cir.1983). Arkla, Inc. v. U.S., 37 F.3d 621, 623-24 (Fed.Cir.1994), cert. denied sub nom. NorAm Energy Corp. v. United States, 514 U.S. 1035, 115 S.Ct. 1399, 131 L.Ed.2d 287 (1995). See also In re Freeman, 30 F.3d at 1465-67. “Factual differences must be material, i.e., having legal significance, to prevent operation of collateral estoppel.” Arkla, Inc. v. U.S., 37 F.3d at 625 (citing Montana v. United States, 440 U.S. at 162, 99 S.Ct. 970). “[T]he defense of collateral estoppel based on a final judgment ... in another suit can ‘be timely made at any stage of the affected proceedings.’ Dana Corp. v. NOK [,Inc.], 882 F.2d" }, { "docid": "7762668", "title": "", "text": "We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3) (1988). STANDARD OF REVIEW Because the Court of Federal Claims denied Arkla’s request for tax refunds as a matter of law by granting the government’s motions for summary judgment, our standard of review is de novo. Turner v. United States, 901 F.2d 1093, 1095 (Fed.Cir.1990) (“We review the grant of summary judgment motions by the Claims Court de novo.”). ANALYSIS A. Collateral Estoppel Bars Arkla’s Claim Based on the Cushion Gas The doctrine of collateral estoppel, also called issue preclusion, bars parties to a prior lawsuit from relitigating any issues that were actually and necessarily determined by a court of competent jurisdiction in the prior suit. Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326 n. 5, 99 S.Ct. 645, 649 n. 5, 58 L.Ed.2d 552 (1979). The doctrine serves “the dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation.” Id. at 326, 99 S.Ct. at 649. Affording a litigant more than one full and fair opportunity for judicial resolution of the same issue results in an untenable misallocation of resources. Blonder-Tongue Labs., Inc. v. University of Ill. Found., 402 U.S. 313, 328-29, 91 S.Ct. 1434, 1442-43, 28 L.Ed.2d 788 (1971). Collateral estoppel is appropriate only if: (1) the issue to be decided is identical to one decided in the first action; (2) the issue was actually litigated in the first action; (3) resolution of the issue was essential to a final judgment in the first action; and (4) the parties had a full and fair opportunity to litigate the issue in the first action. Mother’s Restaurant, Inc. v. Mama’s Pizza, Inc., 723 F.2d 1566, 1569, 221 USPQ 394, 397 (Fed.Cir.1983). 1. The Issue Presented by This Case Because Arida argues that only the requirement of identical issues has not been met here, our first task is to define the issue in this case. To be eligible for an ITC under section 38, the property in question must be either" }, { "docid": "3330281", "title": "", "text": "the demise of the companion rule to “mutuality,” the requirement of strict “adversity” between parties. Scooper Dooper, Inc. v. Kraftco Corp., 494 F.2d 840 at 845 (3rd Cir.) 1B Moore’s Federal Practice, ¶ 0.411[2] at 1314. Since Justice Traynor’s seminal opinion in Bernhard v. Bank of America Nat. Trust & Savings Assn., 19 Cal.2d 807, 122 P.2d 892 (1942), many jurisdictions permit nonparties to prior actions to rely on the judgment as a defense to a subsequent action brought by a party to the prior litigation. See Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1970); Note, Collateral Estoppel of Non-Parties, 87 Harv.L.Rev. 1485 (1974). If a stranger to the prior litigation may invoke estoppel as a defense, then a fortiori a co-party in the prior action ought to be able to preclude a former co-party from relitigating issues finally adjudicated in the pri- or lawsuit. Scooper Dooper, Inc. v. Kraftco Corp., 494 F.2d at 845. In Gerrard v. Larsen, 517 F.2d 1127, 1131-32 (8th Cir. 1975), this Court recognized the general erosion of strict “mutuality” between parties as a requisite to the application of collateral estoppel in its defensive context. See Garrigan v. Giese, 553 F.2d 35, 36-37 n.2 (8th Cir.). The Gerrard court, in discussing whether federal or state law should be applied in determining the collateral estoppel effect of an issue adjudicated in a prior diversity action, found it' unnecessary to resolve the issue because the defensive assertion of collateral estoppel could have been accomplished under either body of law. Id. at 1132. The Gerrard court proceeded on the basis that estoppel was appropriate where: (1) the issue was identical to one in a prior adjudication; (2) there was a final judgment on the merits; (3) the estopped party was a party or in privity with a party to the prior adjudication; and (4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue. Gerrard v. Larsen, 517 F.2d at 1130; see Parklane Hosiery Co. v. Shore, 99 S.Ct. at 652;" }, { "docid": "23000849", "title": "", "text": "(1979), the Supreme Court was asked to determine “whether a party who has had issues of fact adjudicated adversely to it in an equitable action may be collaterally estopped from relitigating the same issues before a jury in a subsequent legal action brought against it by a new party.” Id. at 324, 99 S.Ct. at 648. The Court responded affirmatively, noting offensive collateral estoppel’s “dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation.” Id. at 326, 99 S.Ct. at 649. The Court reiterated that mutuality is not necessary to proper invocation of collateral estoppel under federal law, citing Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971), and further held that the use of offensive collateral estoppel does not violate a defendant’s seventh amendment right to a jury trial. To avoid problems with the use of the doctrine, the Court adopted a general rule of fairness, stating “that in cases where plaintiff could easily have joined in the earlier action or where ... for other reasons, the application of offensive collateral estoppel would be unfair to a defendant, a trial judge should not allow the use of offensive collateral estop-pel.” 439 U.S. at 331, 99 S.Ct. at 651. See also Hicks v. Quaker Oats Co., 662 F.2d 1158, 1170-71 (5th Cir. 1981). In the wake of Parklane, it is clear that a right, question, or fact distinctly put in issue and directly determined as a ground of recovery by a court of competent jurisdiction collaterally estops a party or his privy from relitigating the issue in a subsequent action. So stated, the doctrine recognizes that a person “cannot be bound by a judgment unless he has had reasonable notice of the claim against him and opportunity to be heard in opposition to that claim. IB J. Moore, Moore’s Federal Practice ¶ 0.411 at 1252 (2d ed.1982) (henceforth Moore’s). The right to a full and fair opportunity to litigate an issue is," }, { "docid": "662405", "title": "", "text": "must be “mutual” — i. e., “unless both parties (or their privies) in a second action are bound by a judgment in a previous case, neither party (nor his privy) in the second action may use the prior judgment as determinative of an. issue in the second action.” Blonder-Tongue v. Univer sity Foundation, 402 U.S. 313, 320 — 21, 91 S.Ct. 1434, 1439, 28 L.Ed.2d 788 (1971). However, following the lead of Bernhard v. Bank of America, 19 Cal.2d 807, 122 P.2d 892 (1942), many jurisdictions have abandoned the mutuality rule in civil litigation, especially where the prior judgment is invoked defensively in a second action against a plaintiff bringing suit on an issue he has already litigated and lost as plaintiff in a prior action. See Blonder-Tongue v. University Foundation, supra, 402 U.S. at 323-30, 91 S.Ct. 1434 and Gerrard v. Larsen, 517 F.2d 1127 (8th Cir. 1975). “Where the doctrine of mutuality has been eroded or abandoned in collateral estoppel cases, the courts employ as a criterion for the application of estoppel whether the party against whom the plea is asserted had been given a fair opportunity to be heard on the issue.” Gerrard v. Larsen, supra, 517 F.2d at 1135. One question to be determined in the instant case is whether collateral estoppel is available to a criminal defendant against the government when the defendant himself was not a party (or privy) in the prior prosecution whose judgment is claimed to be determinative of an issue in the subsequent prosecution. The government argues that collateral estoppel is unavailable to such a criminal defendant because of the mutuality rule. And, indeed, the only federal case we have found that allows a criminal defendant who was not a party to the prior prosecution to claim the benefit of collateral estoppel is United States v. Bruno, 333 F.Supp. 570 (E.D.Pa.1971). Nevertheless, because of the steady erosion of the mutuality rule in the area of civil litigation, we must ask whether collateral estoppel should be applicable here despite the lack of mutuality. The doctrine of collateral estoppel has been applied in" }, { "docid": "86940", "title": "", "text": "collateral estoppel offensively arises “when the plaintiff seeks to foreclose the defendant from litigating an issue the defendant has previously litigated unsuccessfully in an action with another party.” Parklane Hosiery, 439 U.S. at 326 n.4, 99 S.Ct. at 649 n.4. See also Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971); Montana v. United States, 440 U.S. 147, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979); Hinkle Northwest, Inc. v. S.E.C., 641 F.2d 1304 (9th Cir. 1981). Writing for the Court in Parklane Hosiery, Justice Stewart stressed the need for caution in using collateral estoppel offensively because of the risk of unfairness to a defendant. First, the availability of offensive collateral estoppel may encourage potential plaintiffs to sit on the sidelines, taking a no risk “wait and see” attitude in the hope that another plaintiff will obtain a favorable judgment that can be invoked offensively against the defendant. Second, a defendant with little at stake in the first action, and thus little incentive to defend vigorously or to appeal an adverse judgment, might find himself, in a subsequent unforeseen action involving higher stakes, estopped from relitigating an issue decided against him in the earlier action. Third, the offensive use of collateral estoppel raises the specter that a defendant faced with identical claims by multiple plaintiffs may prevail in several actions, then be faced with an inconsistent adverse judgment that can be used offensively by future plaintiffs. Finally, offensive use of collateral estoppel may be unfair where the defendant in the first action is forced to defend in an inconvenient forum or where the second action affords the defendant significant procedural opportunities not available in the first action. Notwithstanding these acknowledged risks of unfairness to a defendant, the Court was persuaded that the dual purposes of collateral estoppel — “protecting litigants from the burden of relitigating an identical issue ... and promoting judicial economy by preventing needless litigation,” 439 U.S. at 326, 99 S.Ct. at 649 — justified a rule permitting discretionary use of offensive collateral estoppel in the federal courts. Thus, the" }, { "docid": "7458772", "title": "", "text": "the defendants in this Court. “Collateral estoppel ... has the dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation.” Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645,. 649, 58 L.Ed.2d 552 (1979); see also Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971) (holding that collateral estoppel can be used “defensively” by a defendant to bar a plaintiff from relitigating an issue previously lost against another defendant). However, as the above quoted language suggests, “[t]he issue as to which preclusion is sought must be identical to the issue decided in the prior proceeding.” Metromedia Co. v. Fugazy, 983 F.2d 350, 365 (2d Cir.1992), cert. denied, 508 U.S. 952, 113 S.Ct. 2445, 124 L.Ed.2d 662 (1993); see also In re PCH Assocs., 949 F.2d 585, 593 (2d Cir.1991). “[I]ssues are not identical when the standards governing them are significantly different.” Cullen v. Margiotta, 811 F.2d 698, 732 (2d Cir.), cert. denied, 483 U.S. 1021, 107 S.Ct. 3266, 97 L.Ed.2d 764 (1987); see also Jim Beam Brands Co. v. Beamish & Crawford Ltd., 937 F.2d 729, 734 (2d Cir.1991), cert. denied, 502 U.S. 1094, 112 S.Ct. 1169, 117 L.Ed.2d 415 (1992); Barnell v. Paine Webber Jackson & Curtis, Inc., 614 F.Supp. 373, 377 (S.D.N.Y.1985) (collateral estoppel not appropriate where a different judicial principle governed the prior proceeding). It is undisputed that the issue decided by the California District Court was whether plaintiffs malpractice claims against Hunciker and Ruben were time-barred under California law, specifically California’s one-year statute of limitations for attorney malpractice claims. See Durkin, No. 92-1003 at 10-14. Thus, for plaintiff to be collaterally estopped from asserting the same malpractice claim in this Court, the issue for decision by this Court must be whether plaintiffs malpractice claim against the former partners is time-barred under California law. Plaintiff argues that the issue presented here is significantly different, since this Court must look to New York law to determine what" }, { "docid": "16291810", "title": "", "text": "308 (1980), stated that 28 U.S.C. § 1738 requires a federal court in a § 1983 action to give the same full faith and credit to a prior state court judgment that the courts of the state which rendered it would give it. It is well settled in this circuit that in a federal diversity case a prior state court judgment cannot be given a greater collateral estoppel effect than the state in which the court sits would give it apparently because Erie principles require the federal court sitting in diversity to apply the state’s law of collateral estoppel. Commercial Box & Lumber Co. v. Uniroyal Inc., 623 F.2d 371 (5th Cir. 1980); Cleckner v. Republic Van & Storage Co., Inc., 556 F.2d 766 (5th Cir. 1977); see Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 325, 91 S.Ct. 1434, 1440, 28 L.Ed.2d 788 (1971). However, in a federal question case, the question remains whether the federal court may give a prior state judgment greater estoppel effect than would the courts of the state where the judgment was entered, based upon the federal common law of collateral estoppel. We do not need to decide this question, however, since we are convinced that any differences between the Texas and federal law of collateral estoppel do not affect the case before us. Federal law permits the defensive use of collateral estoppel, Blonder-Tongue, supra. Texas law now appears to permit collateral estoppel against one who has litigated and lost an issue by one who was not a party to the prior litigation. Hardy v. Fleming, 553 S.W.2d 790 (Tex.Civ.App.—El Paso 1977, writ ref’d n.r.e.); Seguros Tepeyac, S. A., Compania Mexicana v. Jernigan, 410 F.2d 718, 727 (5th Cir.), cert. denied, 396 U.S. 905, 90 S.Ct. 219, 24 L.Ed.2d 181 (1969). We now consider whether the Bexar County judgment can be used as defensive collateral estoppel, and if so, whether Reimer would then have no property interest remaining in the car crusher. The record of the Bexar County proceeding indicates that the issue of ownership was. fully and fairly litigated, and" }, { "docid": "3044567", "title": "", "text": "state could enforce its gaming laws against non-members on Indian-owned and trust lands, id. at 538. On appeal the Band challenges the first and third findings. The Band argues that the district court erred in holding that the four northeastern townships are not part of the Reservation because (1) authority to restore the four townships to reservation status is contained in the Indian Reorganization Act; (2) this case is distinguishable from United States v. Minnesota, 466 F.Supp. 1382; and (3) “checkerboard jurisdiction” is impractical and contrary to Congress’ intent. The Band also argues that the district court erred in determining the state’s authority to require licenses of non-members hunting on Indian land because the issue is not ripe for consideration. I. Issue Preclusion The collateral estoppel doctrine “has the dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation.” Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 649, 58 L.Ed.2d 552 (1979), citing Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 328-329, 91 S.Ct. 1434, 1442-1443, 28 L.Ed.2d 788 (1971). In the present case the parties agree that the technical requirements of collateral estoppel are satisfied pursuant to the four-part analysis of Oldham v. Pritchett, 599 F.2d 274 (8th Cir. 1979). According to the Oldham court, collateral estoppel is appropriate where: (1) the issue ... [is] ... identical to one in a prior adjudication; (2) there was a final judgment on the merits; (3) the estopped party was a party or in privy with a party to the prior adjudication; and (4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue. Id. at 279. However, the counties claim that application of the doctrine of collateral estoppel would be both unjust and against the underlying public interest. The Supreme Court has granted trial courts broad discretion in determining whether offensive collateral estoppel should be applied. Parklane Hosiery Co. v. Shore, 439 U.S. at 331, 99 S.Ct. at" }, { "docid": "4653672", "title": "", "text": "States v. Diebold Inc., 369 U.S. at 655, 82 S.Ct. at 994; Knight v. U.S. Fire Insurance Co., 804 F.2d at 11; In re Dubian, 77 B.R. at 340; In re Goux, 72 B.R. at 357. The plaintiff here argues in support of his motion that no issues of fact exist, as consideration of any factual issue is precluded by the prior determination of the New York Human Rights Division under the doctrine of collateral estoppel. By virtue of this prior determination, Perino claims that there remains for decision only an issue of law which then is subject to summary judgment. He contends that as a matter of law the finding of unlawful discrimination by the administrative tribunal mandates a finding by this court that his claim for compensatory damages is nondis-chargeable as a debt arising from a willful and malicious injury within the meaning of Code Section 523(a)(6). B. Collateral Estoppel 1. In general Collateral estoppel, as does the related doctrine of res judicata, serves the “dual purpose of protecting litigants from the burden of relitigating an identical issue ... and of promoting judicial economy by pre venting needless litigation.” Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 646, 649, 58 L.Ed.2d 552 (1979); Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 328-29, 91 S.Ct. 1434, 1442-43, 28 L.Ed.2d 788 (1971). Application of this doctrine “is central to the purpose for which civil courts have been established, the conclusive resolution of disputes within their jurisdictions.” Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210. Collateral estoppel thereby relieves “parties of the cost and vexation of multiple lawsuits, conserve[s] judicial resources, and, by preventing inconsistent decisions, encourage[s] reliance on adjudication.” Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980). As one writer noted, “Collateral estoppel is used to encourage the parties to present their best arguments on the issues in question in the first instance and thereby increase judicial efficiency.” B. Russell, Bankruptcy Evidence Manual § 4 at 5 (1987). Under the" }, { "docid": "18902357", "title": "", "text": "preventing needless litigation. Id. at 326, 99 S.Ct. at 649, 58 L.Ed.2d at 559; citing, Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 328-29, 91 S.Ct. 1434, 1442-43, 28 L.Ed.2d 788. Under the doctrine of collateral estoppel, a judgment in a prior suit precludes relitigation of issues, in a subsequent action, which were actually litigated and necessary to the outcome of the first suit. Parklane Hosiery Co. v. Shore, 439 U.S. at 326, 99 S.Ct. at 649, 58 L.Ed.2d at 559. Bankruptcy courts have increasingly been asked to determine the extent to which the doctrines of res judicata and collateral estoppel apply to preclude relit-igation of issues and claims previously decided by other state and federal courts. Any such analysis must begin with Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979), a case in which the Supreme Court held that extrinsic evidence may be admitted in order to determine accurately the dischargeability of a debt previously reduced to judgment in a state court. 442 U.S. at 138-39, 99 S.Ct. at 2213, 60 L.Ed.2d at 776. Although the Supreme Court was ruling on the issue of the defensive use of res judicata by the debtor in a bankruptcy dischargeability proceeding where the creditor’s claim had previously reduced to judgment in a state court, the Felsen court provided some guidance into the offensive use of collateral estoppel. In footnote 10, the Court observed that if a state court determined factual issues using identical standards as those found in § 17, then collateral estoppel could bar relit-igation of those issued in bankruptcy. 442 U.S. at 138, 99 S.Ct. at 2213, 60 L.Ed.2d at 776. Since the Felsen decision, the doctrines of collateral estoppel and res judicata in the context of discharge and dischargeability have been the subject of much debate. For example, at least one circuit has held that a prior judgment will never be granted issue preclusive effect in a subsequent dis-chargeability proceeding, although the judgment may be prima facie evidence of the facts contained therein. See In re Rahm, 641 F.2d 755, 757" }, { "docid": "3330282", "title": "", "text": "1975), this Court recognized the general erosion of strict “mutuality” between parties as a requisite to the application of collateral estoppel in its defensive context. See Garrigan v. Giese, 553 F.2d 35, 36-37 n.2 (8th Cir.). The Gerrard court, in discussing whether federal or state law should be applied in determining the collateral estoppel effect of an issue adjudicated in a prior diversity action, found it' unnecessary to resolve the issue because the defensive assertion of collateral estoppel could have been accomplished under either body of law. Id. at 1132. The Gerrard court proceeded on the basis that estoppel was appropriate where: (1) the issue was identical to one in a prior adjudication; (2) there was a final judgment on the merits; (3) the estopped party was a party or in privity with a party to the prior adjudication; and (4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue. Gerrard v. Larsen, 517 F.2d at 1130; see Parklane Hosiery Co. v. Shore, 99 S.Ct. at 652; Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. at 328, 91 S.Ct. 1434. We believe that this analysis may appropriately be applied to the circumstances of the present case. The Court’s adoption of the Gerrard four-part test for the application of collateral estoppel additionally forecloses the issue of whether the Oldhams and Pritchett were “adverse” as co-parties in the proceeding. We agree with the reasoning of the Third Circuit that “[the] nullification of the mutuality requirement renders non-adversity irrelevant to the doctrine of collateral estoppel.” Scooper Dooper, Inc. v. Kraftco Corp., 494 F.2d at 845. Only the fourth element set forth in Gerrard is at issue in this case. Thus, the relevant inquiry is not with the existence of formal “mutuality” or “adversity,” but whether, given the particular circumstances, there was a full and fair opportunity to be heard on the issue adjudicated in the prior action. In the context of the immediate case, the meaning of “full and fair opportunity” is dependent on whether the Oldhams were denied procedural, substantive, or evidentiary" }, { "docid": "18902356", "title": "", "text": "so that the moving party is entitled to a judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509, 91 L.Ed.2d 202 (1986). “One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims and defenses ...” Celotex v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita Electric Industrial Co., Inc. v. Zenith Radio Corp., 475 U.S. 574, 599, 106 S.Ct. 1348, 1362, 89 L.Ed.2d 538 (1986). B. Collateral Estoppel As observed by the Supreme Court in Parklane Hoisery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979), Collateral estoppel, like the related doctrine of res judicata, has the dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation. Id. at 326, 99 S.Ct. at 649, 58 L.Ed.2d at 559; citing, Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 328-29, 91 S.Ct. 1434, 1442-43, 28 L.Ed.2d 788. Under the doctrine of collateral estoppel, a judgment in a prior suit precludes relitigation of issues, in a subsequent action, which were actually litigated and necessary to the outcome of the first suit. Parklane Hosiery Co. v. Shore, 439 U.S. at 326, 99 S.Ct. at 649, 58 L.Ed.2d at 559. Bankruptcy courts have increasingly been asked to determine the extent to which the doctrines of res judicata and collateral estoppel apply to preclude relit-igation of issues and claims previously decided by other state and federal courts. Any such analysis must begin with Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979), a case in which the Supreme Court held that extrinsic evidence may be admitted in order to determine accurately the dischargeability of a debt previously reduced to judgment in a state court. 442 U.S. at 138-39," }, { "docid": "10015225", "title": "", "text": "244 U.S. 294, 299, 37 S.Ct. 506, 61 L.Ed. 1148 (1917). To preclude parties from contesting matters that they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits, conserves judicial resources, and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions. Montana v. United States, 440 U.S. 147, 153-54, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979) (footnote omitted). Thus, the doctrines of res judicata and collateral estoppel operate to prevent the relitigation of a claim or issue that has already had its day in court. As noted, by affording a claimant only one opportunity to obtain redress, the doctrines conserve judicial resources, foster reliance upon judicial decisions, and protect litigants from vexatious and needless litigation. Comair Rotron, Inc. v. Nippon Densan Corp., 49 F.3d 1535, 1537 (Fed.Cir.1995); In re Freeman, 30 F.3d 1459, 1465-68 (Fed.Cir.1994); Martin v. United States, 30 Fed.Cl. 542, 546, aff'd, 41 F.3d 1519, 1994 WL 623212 (Fed.Cir.1994) (table); Mark Smith Constr. Co. v. United States, 15 Cl.Ct. 32, 35-36 (1988). In this regard, the United States Court of Appeals for the Federal Circuit has stated the relevant test for issue preclusion: The doctrine of collateral estoppel, also called issue preclusion, bars parties to a prior lawsuit from relitigating any issues that were actually and necessarily determined by a court of competent jurisdiction in the prior suit. Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326 n. 5, 99 S.Ct. 645, 649 n. 5, 58 L.Ed.2d 552 (1979). The doctrine serves “the dual purpose of protecting litigants from the burden of re-litigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation.” Id. at 326, 99 S.Ct. at 649. Affording a litigant more than one full and fair opportunity for judicial resolution of the same issue results in an untenable misallocation of resources. Blonder-Tongue Labs., Inc. v. University of Ill. Found., 402 U.S. 313, 328-29, 91 S.Ct. 1434, 1442-43, 28 L.Ed.2d 788 (1971). Collateral estoppel is appropriate only if: (1) the issue to" }, { "docid": "23461856", "title": "", "text": "544 F.3d 328, 336 (1st Cir.2008). The doctrine selves the twin goals of “protecting litigants from the burden of relitigating an identical issue” and “promoting judicial economy by preventing needless litigation.” Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). Collateral estoppel may be applied where “(1) the issue sought to be precluded in the later action is the same as that involved in the earlier action; (2) the issue was actually litigated; (3) the issue was determined by a valid and binding final judgment; and (4) the determination of the issue was essential to the judgment.” Ramallo Bros. Printing, Inc. v. El Dia, Inc., 490 F.3d 86 (1st Cir.2007). In the past, courts “adhered to the doctrine of ‘mutuality of estoppel,’ which ordained that ‘unless both parties (or their privies) in a second action are bound by a judgment in a previous case, neither party (nor his privy) in the second action may use the prior judgment as determinative of an issue in a second ac tion.’” Acevedo-Garcia, 351 F.3d at 573 (quoting Blonder-Tongue Labs. v. Univ. of Ill. Found., 402 U.S. 313, 320-21, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971)). However, mutuality is no longer strictly required for the application of collateral estoppel in federal courts. Fiumara v. Fireman’s Fund Ins. Cos., 746 F.2d 87, 92 (1st Cir.1984). Instead, the central question is “whether a party has had a full and fair opportunity for judicial resolution of the same issue.” Id. Nonmutual collateral estoppel may be invoked either offensively, by a plaintiff who “seeks to foreclose the defendant from litigating an issue the defendant has previously litigated unsuccessfully in an action with another party,” or, as in this case, defensively, by a defendant who “seeks to prevent a plaintiff from asserting a claim the plaintiff has previously litigated and lost against another defendant.” Parklane Hosiery, 439 U.S. at 326 n. 4, 99 S.Ct. 645; see id. at 329-32, 99 S.Ct. 645. We have also recognized that collateral estoppel is “no longer limited to ultimate issues: necessary intermediate findings can now, be" }, { "docid": "22876317", "title": "", "text": "diversity court should apply state law to such an issue. We also note that the implicit assumption in Frank that a state court would apply state preclusion law has been eroded by the Supreme Court’s decision in Allen v. McCurry, supra. For the reasons given above, we hold that federal law governs the collateral estoppel effect of a federal criminal conviction in a subsequent diversity action. It is especially appropriate to apply federal law in the pending case since the estoppel issue turns on analysis of the unusual circumstances of the disposition of the prior federal appeal, a matter affecting “important procedural interests” of a federal court. See 18 C. Wright, supra, § 4472 at 741. We therefore proceed to apply federal preclusion law to the instant controversy. 2. Gelb’s Claims. The Government bears a higher burden of proof in the criminal than in the civil context and consequently may rely on the collateral estoppel effect of a criminal conviction in a subsequent civil case. See United States v. Podell, 572 F.2d 31, 35 (2d Cir.1978). Because mutuality of estoppel is no longer an absolute requirement under federal law, Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979); Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971), a party other than the Government may assert collateral estoppel based on a criminal conviction. See United States v. Frank, supra, 494 F.2d at 160. The criminal defendant is barred from relitigating any issue determined adversely to him in the criminal proceeding, provided that he had a full and fáir opportunity to litigate the issue, see Kremer v. Chemical Construction Corp., 456 U.S. 461, 481, 102 S.Ct. 1883, 1897, 72 L.Ed.2d 262 (1982); Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, supra, 402 U.S. at 328-29, 91 S.Ct. at 1442-43. Applying the foregoing principles to the instant controversy, we note that five counts of the criminal indictment charged Gelb with committing mail fraud by inflating the amount of his losses in statements to Royal. The jury returned convictions" }, { "docid": "745587", "title": "", "text": "litigation has occurred in that time and the need for that litigation attests that “the history of state judicial experience in the area [does not] indicate special reliability.” Lewis, supra. Cf. Griffin v. Prince Edward County School Board, 377 U.S. 218, 229, 84 S.Ct. 1226, 1232, 12 L.Ed.2d 258 (1964). It is no longer persuasive to argue that federal courts should defer to the state courts when discrimination in education is alleged. Burford-type abstention is inappropriate and the State’s motion to dismiss is denied. 2. Plaintiffs’ Motion For Partial Summary-Judgment. On the basis of Doe v. Plyler, 458 F.Supp. 569 (E.D.Tex.1978), the plaintiffs have moved for summary judgment pursuant to Rule 56, Fed.R.Civ.P. They argue that the doctrine of collateral estoppel precludes re-litigation of the questions actually decided in Plyler: Whether section 21.031 violates the equal protection clause of the Fourteenth Amendment; whether it is preempted by the Immigration and Naturalization Act. In Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979), the Supreme Court stated that collateral estoppel “has the dual purpose of protecting litigants from the burden of re-litigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 328-329 [91 S.Ct. 1434, 1442-1443, 28 L.Ed.2d 788] (1971).” The doctrine of collateral estoppel should be applied when three requirements are satisfied: (1) The issue to be concluded must be identical to that involved in the prior action; (2) In the prior action the issue must have been actually litigated; and (3) The determination of the issue in the prior action must have been necessary and essential to the resulting judgment. International Ass’n of Mach. & Aero Workers v. Nix, 512 F.2d 125, 132 (5th Cir. 1975). See Port Arthur Towing Co. v. Owens-Illinois, Inc., 492 F.2d 688, 692 n.6 (5th Cir. 1974); James Talcott, Inc. v. Allahbad Bank, Ltd., 444 F.2d 451, 458-59 (5th Cir. 1971). It is readily apparent that the issue in Plyler was not identical to that in this" }, { "docid": "1155857", "title": "", "text": "to which the trustee may now be collaterally estopped from pursuing similar relief against the Defendants herein. Despite reasons grounded in public policy favoring such estoppel, I am constrained to hold that the doctrine has no application to this controversy. The United States Supreme Court effectively abandoned the mutuality requirement of collateral estoppel in 1971 as to cases in federal courts applying federal law. See Blonder-Tongue Lab., Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971). Under the rule adopted in Blonder-Tongue, a plaintiff is estopped from relit-igating those issues which were unsuccessfully litigated by the plaintiff against a different defendant in an earlier proceeding, unless the plaintiff establishes that he did not have a full and fair opportunity to litigate such issues in the first proceeding. See Blonder-Tongue, id. at 329-34, 91 S.Ct. at 1443-45; see also Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326-28, 99 S.Ct. 645, 649-50, 58 L.Ed.2d 552 (1979) (expanding defensive use of collateral estoppel as well). Defensive use of collateral estoppel outside the context of mutuality retains the dual purpose of protecting litigants from the burden of relit-igating issues identical to those previously litigated and of promoting judicial economy by preventing presumably needless litigation. Parklane Hosiery, 439 U.S. at 326, 99 S.Ct. at 649. There appears to be some support for the application of collateral estoppel to the legal issues raised by the Trustee. See IB J. Moore, Moore’s Federal Practice ¶ 0.448, at 846 (1984) (“[I]n the absence of significant factual differentiation between separable facts, it is reasonable to assume that a change in the applicable law, or at least in the ‘legal atmosphere,’ must intervene if collateral estoppel is not to be applied in a later suit.”). Whatever the possible merits of applying collateral estoppel to primarily legal questions, however, it is clear in this case that the decision in I.S.D. I has only stare decisis effect. Federal Rule of Civil Procedure 8(c), which applies in adversary proceedings pursuant to Bankruptcy Rule 7008, provides that “[i]n pleadings to a preceding pleading, a party" }, { "docid": "23000848", "title": "", "text": "integrity of federal court judgments and that this rationale applies equally to diversity cases. Accord, Southern Pacific Transportation Co. v. Smith Materials Corp., 616 F.2d 111, 115 (5th Cir. 1980); Aerojet-General Corp. v. Askew, 511 F.2d 710, 716-17 (5th Cir.), cert. denied, 423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d 137 (1975). While appellants try valiantly to distinguish these eases, essentially on the grounds that these involved instances in which “the very issue involved in the first case was the subject of attempted litigation in the second,” the distinction is one without significance. As the authors of the Restatement (Second) — Judgments conclude, the principle of finality essential to a court’s authority demands that “federal law determine the effects under the rules of res judicata of a judgment of a federal court.” Restatement (Second) — Judgments § 87 (1982). Having determined that federal law of collateral estoppel governs, we next turn to an examination of just what that law is. In Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979), the Supreme Court was asked to determine “whether a party who has had issues of fact adjudicated adversely to it in an equitable action may be collaterally estopped from relitigating the same issues before a jury in a subsequent legal action brought against it by a new party.” Id. at 324, 99 S.Ct. at 648. The Court responded affirmatively, noting offensive collateral estoppel’s “dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation.” Id. at 326, 99 S.Ct. at 649. The Court reiterated that mutuality is not necessary to proper invocation of collateral estoppel under federal law, citing Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971), and further held that the use of offensive collateral estoppel does not violate a defendant’s seventh amendment right to a jury trial. To avoid problems with the use of the doctrine, the Court adopted a general rule of fairness," }, { "docid": "16291809", "title": "", "text": "to lose. As a preliminary matter, we note that even if it was improper for the Bexar County court to stay the judgment in Reimer v. Sandefer, we cannot correct this alleged error in the present action. “Federal courts are not designed to serve as additional appellate reviewers of State Court judgments.” Reynolds v. State of Georgia, 640 F.2d 702, 703 (5th Cir. 1981). If there was error or foul play in the Bexar County judgment, it was Reimer’s choice to appeal the decision in the state courts. There is no evidence in the record that Reimer did so, nor has he suggested to us any reason why the decision could not have been appealed, Hence the only questions properly before us are (1) whether the Bexar County judgment can be used as a defensive collateral estoppel, and (2) whether, if the Bexar County judgment is a proper estoppel, Reimer still retains any property interests in the car crusher. The Supreme Court’s decision in Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980), stated that 28 U.S.C. § 1738 requires a federal court in a § 1983 action to give the same full faith and credit to a prior state court judgment that the courts of the state which rendered it would give it. It is well settled in this circuit that in a federal diversity case a prior state court judgment cannot be given a greater collateral estoppel effect than the state in which the court sits would give it apparently because Erie principles require the federal court sitting in diversity to apply the state’s law of collateral estoppel. Commercial Box & Lumber Co. v. Uniroyal Inc., 623 F.2d 371 (5th Cir. 1980); Cleckner v. Republic Van & Storage Co., Inc., 556 F.2d 766 (5th Cir. 1977); see Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 325, 91 S.Ct. 1434, 1440, 28 L.Ed.2d 788 (1971). However, in a federal question case, the question remains whether the federal court may give a prior state judgment greater estoppel effect than would the courts of" } ]

[ { "docid": "22700454", "title": "", "text": "expectation of profits to be derived from the entrepreneurial or managerial efforts of others,” even if he has contracted with the vendor for the management of the property. Fargo Partners v. Dain Corp., supra; Schultz v. Dain Corp., supra. So long as the investor retains ultimate control, he has the power over the investment and the access to information about it which is necessary to protect against any unwilling dependence on the manager. It is not enough, therefore, that partners in fact rely on others for the management of their investment; a partnership can be an investment contract only when the partners are so dependent on a particular manager that they cannot replace him or otherwise exercise ultimate control. All of this indicates that an investor who claims his general partnership or joint venture interest is an investment contract has a difficult burden to overcome. On the face of a partnership agreement, the investor retains substantial control over his investment and an ability to protect himself from the managing partner or hired manager. Such an investor must demonstrate that, in spite of the partnership form which the investment took, he was so dependent on the promoter or on a third party that he was in fact unable to exercise meaningful partnership powers. A general partnership or joint venture interest can be designated a security if the investor can establish, for example, that (1) an agreement among the parties leaves so little power in the hands of the partner or venturer that file arrangement in fact distributes power as would a limited partnership; or (2) the partner or venturer is so inexperienced and unknowledgeable in business affairs that he is incapable of intelligently exercising his partnership or venture powers; or (3) the partner or venturer is so dependent on some unique entrepreneurial or managerial ability of the promoter or manager that he cannot replace the manager of the enterprise or otherwise exercise meaningful partnership or venture powers. None of these factors appear to be present in this case. In the first place, there is no representation or indication in the record" } ]

[ { "docid": "791595", "title": "", "text": "or (2) the partner or venturer is so inexperienced and unknowledgeable in business affairs that he is incapable of intelligently exercising his partnership or venture powers; or (3) the partner or venturer is so dependent on some unique entrepreneurial or managerial ability of the promoter or manager that he cannot replace the manager of the enterprise or otherwise exercise meaningful partnership or venture powers. Id. at 424. This test disregards form and looks to the underlying economic reality of the investment. Although an enterprise may be a partnership or a joint venture in form, it may be considered the equivalent of a limited partnership under Williamson because by contract or factual necessity certain partners have little or no control over the management of the enterprise. In the instant case, it is clear that summary judgment is inappropriate under either of the first two tests. The joint venture and partnership agreements severely circumscribed plaintiffs’ rights to control the enterprise. The joint venture agreement placed “sole and complete” management control in the managing partners, including the right to finance and refinance the property, to compromise claims, to improve the property, and to negotiate sales. Plaintiffs’ rights were limited to approving by a 50% vote any sale or amendment to the agreement proposed by the managing partners. The partnership agreement had similar attributes. Plaintiffs could remove a managing partner, amend the agreement, terminate the partnership, or sell all assets by a 66%% vote. These rights are similar to those which a limited partner may exercise under California law. See California Corporations Code § 15507. Accordingly, under the undisputed facts, it is clear that the agreements left “so little power in the hands of the partner[s] or venturer[s] that the arrangements] in fact distribute^] power as would a limited partnership.” Williamson, 645 F.2d at 424. Second, as noted above, plaintiffs’ deposition testimony establishes that they were unsophisticated in business affairs. Many plaintiffs did not even read the documents they signed; nor did they understand the full significance of most of the transactions which occurred. Certainly there are at least disputed issues of fact as" }, { "docid": "1514864", "title": "", "text": "security within the statutory definition. E.g., Sibel v. Scott, 725 F.2d 995, 998 (5th Cir.), cert. denied, 467 U.S. 1242, 104 S.Ct. 3515, 82 L.Ed.2d 823 (1984). There are, however, instances in which even a general partnership interest may be considered a security. Williamson, 645 F.2d at 422. Whether a general partner’s or joint venturer’s interest may be considered a security depends upon whether: (1) an agreement among the parties leaves so little power in the hands of the partner or venturer that the arrangement in fact distributes power as would a limited partnership; or (2) the partner or venturer is so inexperienced and unknowledgeable in business affairs that he is incapable of intelligently exercising his partnership or venture powers; or (3) the partner or venturer is so dependent on some unique entrepreneurial or managerial ability of the promoter or manager that he cannot replace the manager of the enterprise or otherwise exercise meaningful partnership or venture powers. Id. at 424. Nevertheless, a strong presumption remains that a general partnership or joint venture interest is not a security. A party seeking to prove the contrary must bear a heavy burden of proof. Id. Appellants as general partners did not meet this heavy burden with regard to the Dickinson Apartment Project Venture, one of those at issue. A review of the joint venture agreement indicates that substantial authority was retained by the investors. Youmans and the other eight investors, excluding Simon and Simmons, controlled 63% of the interest in the venture. Simon and Simmons controlled the remaining 37% interest. Together the investors could terminate the joint venture by majority vote. Moreover, they could also replace the Managing Venturer, Simmons, by majority vote. The joint venture agreement permitted Youmans and the other investors too much power in the Dickinson project for us to conclude this investment could be a security under the Howey test. Youmans also engaged in a number of business transactions not connected with appellees. Thus, it cannot be said that he was inexperienced or unknowledgeable in business affairs. Moreover, the evidence at hand indicates that Simon and Simmons possessed" }, { "docid": "22700453", "title": "", "text": "that the partnership’s manager has some unique understanding of the real estate market in the area in which the partnership is to invest; the partners may have the legal right to replace the manager, but they could do so only by forfeiting the management ability on which the success of the venture is dependent. Or investors may purchase joint venture interests in an operating business in reliance on the managing partner’s unusual experience and ability in running that particular business; again, a legal right of control would have little value if the partners were forced to rely on the manager’s unique abilities. We must emphasize, however, that a reliance on others does not exist merely because the partners have chosen to hire another party to manage their investment. The delegation of rights and duties-standing alone-does not give rise to the sort of dependence on others which underlies the third prong of the Howey test. An investor who retains control over his investment has not purchased an interest in a common venture “premised on the reasonable expectation of profits to be derived from the entrepreneurial or managerial efforts of others,” even if he has contracted with the vendor for the management of the property. Fargo Partners v. Dain Corp., supra; Schultz v. Dain Corp., supra. So long as the investor retains ultimate control, he has the power over the investment and the access to information about it which is necessary to protect against any unwilling dependence on the manager. It is not enough, therefore, that partners in fact rely on others for the management of their investment; a partnership can be an investment contract only when the partners are so dependent on a particular manager that they cannot replace him or otherwise exercise ultimate control. All of this indicates that an investor who claims his general partnership or joint venture interest is an investment contract has a difficult burden to overcome. On the face of a partnership agreement, the investor retains substantial control over his investment and an ability to protect himself from the managing partner or hired manager. Such an" }, { "docid": "6941947", "title": "", "text": "or hired manager. Such an investor must demonstrate that, in spite of the partnership form which the investment took, he was so dependent on the promoter or on a third party that he was in fact unable to exercise meaningful partnership powers. A general partnership or joint venture interest can be designated a security if the investor can establish, for example, that (1) an agreement among the parties leaves so little power in the hands of the partner or venturer that the arrangement in fact distributes power as would a limited partnership; or (2) the partner or venturer is so inexperienced and unknowledgeable in business affairs that he is incapable of intelligently exercising his partnership or venture powers; or (3) the partner or venturer is so dependent on some unique entrepreneurial or managerial ability of the promoter or manager that he cannot replace the manager of the enterprise or otherwise exercise meaningful partnership or venture powers. Id. at 424 (emphasis added). If the reasoning in Williamson is accepted, then Goodwin’s position might be more substantial than we find it. The complaint explicitly alleged that: Despite the faet that certain passive partners, such as Goodwin, were denominated as general partners, the terms of the limited partnership agreement left so little control in the hands of Goodwin and other passive general partners who did not serve on the executive committee, that the arrangement distributed control with respect to those general partners including Goodwin as it did with the limited partners. Complaint U 17, App. at 6. Quite literally, and no doubt intentionally, this language puts the pleadings within the exception enunciated in Williamson, which might protect the viability of the federal claim against a motion to dismiss, and allow a plaintiff to raise factual issues. Goodwin’s sole argument under Williamson is that the Elkins Partnership Agreement so limited his power that he was, in essence, a mere limited partner. As we have noted, however, whether a partnership interest constitutes a security depends on the legal rights and powers enjoyed by the investor. Whatever may have been the effect of the Partnership Agreement," }, { "docid": "4544978", "title": "", "text": "and the sale price and listing process were all under Sato’s control. Sato could have refused to list the property for sale at that time under the terms of the Agreement. Williams could have done little with the unrecorded Deed. Even if Williams were to have recorded the Deed at some point, it did not give him meaningful power in the project, as it would come after the lien of the construction loan. As discussed, Sato’s argument that they formed a partnership to share profits and loss is rejected. Even if their relationship was a partnership, the interest in the partnership would be a security under Consolidated Management Group, LLC v. Dep’t of Corp. See 162 Cal.App.4th 598, 610, 75 Cal.Rptr.3d 795 (Cal.Ct.App.2008). A limited partner’s membership in a typical limited liability partnership is a security, as the profits came substantially from efforts of the general partner. Id. The factors to determine when the a general partnership or joint venture can be designated as a security include: (1) the agreement leaves so little power in the hands of the partner or venturer that the arrangement in fact mimics a limited partnership; or (2) the partner or venturer is so inexperienced and unknowledgeable in business affairs that he is incapable of intelligently exercising his partnership or venture powers; or (3) the partner or ven-turer is so dependent on some unique entrepreneurial or managerial ability of the promoter or manager that he cannot replace the manager of the enterprise or otherwise exercise meaningful partnership or venture powers.”. Id. at 611, 75 Cal. Rptr.3d 795. The distribution of power under the Agreement accorded Sato with full control of the “partnership” as (1) he was the owner of the property; (2) he was the general contractor of the construction; (3) he was the broker in selling the property; and (4) Williams had no power, expertise, or desire, to engage in the construction and sale of the property. If it was a partnership, Williams would be a typical “passive” partner or venturer whose sole responsibility is to make capital investment in exchange for a return" }, { "docid": "7449471", "title": "", "text": "exist merely because the partners have chosen to hire another party to manage their investment. The delegation of rights and duties-standing aloner-does not give rise to the sort of dependence on others which underlies the third prong of the Howey test. An investor who retains control over his investment has not purchased an interest in a common venture “premised on the reasonable expectation of profits to be derived from the entrepreneurial or managerial efforts of others,” even if he has contracted with the vendor for the management of the property. Fargo Partners v. Dain Corp., supra; Schultz v. Dain Corp., supra. So long as the investor retains ultimate control, he has the power over the investment and the access to information about it which is necessary to protect against any unwilling dependence on the manager. It is not enough, therefore, that partners in fact rely on others for the management of their investment; a partnership can be an investment contract only when the partners are so dependent on a particular manager that they cannot replace him or otherwise exercise ultimate control. All of this indicates that an investor who claims his general partnership or joint venture interest is an investment contract has a difficult burden to overcome. On the face of a partnership agreement, the investor retains substantial control over his investment and an ability to protect himself from the managing partner or hired manager. Such an investor must demonstrate that, in spite of the partnership form which the investment took, he was so dependent on the promoter or on a third party that he was in fact unable to exercise meaningful partnership powers. A general partnership or joint venture interest can be designated a security only if the investor can establish, for example, that (1) an agreement among the parties leaves so little power in the hands of the partner or venturer that the arrangement in fact distributes power as would a limited partnership; or (2) the partner or venturer is so inexperienced and unknowledgeable in business affairs that he is incapable of intelligently exercising his partnership or venture" }, { "docid": "9559001", "title": "", "text": "dependent on the effort of others for profits. In some instances, however, an apparent general partnership or joint ven ture interest may in fact be an investment contract. 731 F.2d at 356 (citation omitted; emphasis added). There is, of course, no suggestion in Professional Associates that the alleged “partnership” had been formed under the partnership laws of any state, much less one that had adopted the substantive provisions of the Uniform Partnership Act. The most that can be said about this Sixth Circuit case is that it stands for the proposition that in extreme cases, investment contracts which do not bear the usual characteristics of partnership interests may be construed as investment contracts even though for some purposes these interests might also be construed as general partnership interests. Williamson v. Tucker, 645 F.2d 404 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981), appears to stand for the same proposition. In that case Judge Randall identified three extraordinary circumstances, none of which apply here, in which a relationship that may be characterized for some purposes as a general partnership may nonetheless give rise to a finding that security interests have been created. Judge Randall opined: [A]n investor who claims his general partnership or joint venture interest is an investment contract has a difficult burden to overcome____ Such an investor must demonstrate that, in spite of the partnership form which the investment took, he was so dependent on the promoter or on a third party that he was in fact unable to exercise meaningful partnership powers. A general partnership or joint venture interest can be designated a security if the investor can establish, for example, that (1) an agreement among the parties leaves so little power in the hands of the partner or venturer that the arrangement in fact distributes power as would a limited partnership; or (2) the partner or venturer is so inexperienced and unknowledgeable in business affairs that he is incapable of intelligently exercising his partnership or venture powers; or (3) the partner or venturer is so dependent on some unique entrepreneurial or" }, { "docid": "7449472", "title": "", "text": "him or otherwise exercise ultimate control. All of this indicates that an investor who claims his general partnership or joint venture interest is an investment contract has a difficult burden to overcome. On the face of a partnership agreement, the investor retains substantial control over his investment and an ability to protect himself from the managing partner or hired manager. Such an investor must demonstrate that, in spite of the partnership form which the investment took, he was so dependent on the promoter or on a third party that he was in fact unable to exercise meaningful partnership powers. A general partnership or joint venture interest can be designated a security only if the investor can establish, for example, that (1) an agreement among the parties leaves so little power in the hands of the partner or venturer that the arrangement in fact distributes power as would a limited partnership; or (2) the partner or venturer is so inexperienced and unknowledgeable in business affairs that he is incapable of intelligently exercising his partnership or venture powers; or (3) the partner or venturer is so dependent on some unique entrepreneurial or managerial ability of the promoter or manager that he cannot replace the manager of the enterprise or otherwise exercise meaningful partnership or venture powers. Neither of the first two of these factors appears to be present in this case. In the first place, there is no representation or indication in the record that the partnership agreement did not really give the investors partnership powers. The plaintiffs do assert that they did not expect to exercise these powers, and that they in fact purchased their interests on the expectation that they would rely on Godwin Investments to make all management decisions. But they do not deny that the agreement allowed them to exercise ultimate control should they decide to do so, and it appears that, when trouble arose in late 1975, the plaintiffs did attend joint venture meetings and take a greater interest in important decisions. In the second place, it is clear that the plaintiffs were capable of exercising genuine" }, { "docid": "791594", "title": "", "text": "partnership is an investment contract. See, e.g., SEC v. Murphy, 626 F.2d 633, 640-41 (9th Cir.1980). In contrast, they have generally held that an interest in a joint venture or general partnership is not a security, due to the substantial rights of control retained by a general partner. Even where a general partner is passive and relies entirely on other partners to manage the partnership’s assets, the courts have consistently concluded that there is no security. Nonetheless, there are exceptions to this rule. In the leading case Williamson v. Tucker, 645 F.2d 404, 417-26, the Fifth Circuit exhaustively reviewed the cases in this area and set forth a test for determining when a joint venture or partnership interest can be a security. According to Williamson, [a] general partnership or joint venture interest can be designated a security if the investor can establish, for example, that (1) an agreement among the parties leaves so little power in the hands of the partner or venturer that the arrangement in fact distributes power as would a limited partnership; or (2) the partner or venturer is so inexperienced and unknowledgeable in business affairs that he is incapable of intelligently exercising his partnership or venture powers; or (3) the partner or venturer is so dependent on some unique entrepreneurial or managerial ability of the promoter or manager that he cannot replace the manager of the enterprise or otherwise exercise meaningful partnership or venture powers. Id. at 424. This test disregards form and looks to the underlying economic reality of the investment. Although an enterprise may be a partnership or a joint venture in form, it may be considered the equivalent of a limited partnership under Williamson because by contract or factual necessity certain partners have little or no control over the management of the enterprise. In the instant case, it is clear that summary judgment is inappropriate under either of the first two tests. The joint venture and partnership agreements severely circumscribed plaintiffs’ rights to control the enterprise. The joint venture agreement placed “sole and complete” management control in the managing partners, including the right" }, { "docid": "17225995", "title": "", "text": "documents’ authenticity.” Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir.2007) (quotation omitted); Slater v. A.G. Edwards & Sons, Inc., 719 F.3d 1190, 1196 (10th Cir.2013) (\"In a securities case,' we may consider, in addition to the complaint, documents incorporated by ,-reference into the complaint; public documents filed with the SEC, and documents the plaintiffs relied upon in .bringing suit.’’). In the absence of argument to the contrary, the Court finds that the documents mentioned herein meet these criteria,' . Plaintiffs’ complaint does not define the foregoing acronyms. . The Private Securities Litigation Reform Act imposes specific and more stringent pleading requirements on complaints alleging securities fraud under Section 10(b). Adams v. Kinder-Morgan, Inc., 340 F.3d 1083, 1095 (10th Cir.2003). However, because the Court resolves the present motions on other grounds, the Court need not set forth such requirements or determine whether plaintiffs have' satisfied them.\" See, e.g., SEC v. Shields, 744 F.3d 633, 640 (10th Cir.2014). . Shields concerned whether a general partnership interest constituted a security. Where general partnerships are concerned, the Tenth Circuit applies a \"strong presumption that an interest in a general partnership is not a security\" whenever a partnership agreement \"allocates powers to general partners that are specific and unambiguous” and provide those partners \"with access to information and the ability, to protect their investment.” Shields, 744 F.3d at 643-44 (quoting Banghart, 902 F.2d at 808). This presumption can be rebutted in three non-exhaustive situations: (1), an agreement among the parties leaves so little power in the hands of the partner or venturer that the arrangement in fact distributes power as would a limited partnership; or (2) the partner or venturer is so inexperienced and unknowledgeable in business affairs that he is incapable of intelligently exercising his partnership or venture powers; or (3) the partner or venturer is so dependent on some unique entrepreneurial or managerial ability of the promoter or manager that he cannot replace the manager of the -enterprise- or otherwise exercise. meaningful partnership, or venture powers. Shields, 744 F.3d at 643-44 (quotation omitted) (adopting approach set forth in Williamson v. Tucker;-MS" }, { "docid": "4444552", "title": "", "text": "ruled as a matter of law. In Williamson, the Fifth Circuit noted that there will be cases in which a general partner can show, by meeting a substantial burden of proof, that “in spite of the partnership form which the investment took, he was so dependent on the promoter of the third party that he was in fact unable to exercise meaningful partnership powers. .. ” 645 F.2d at 423. The court noted: A general partnership or joint venture interest can be designated a security if the investor can establish, for example, that (1) an agreement among the parties leaves so little power in the hands of the partner or venturer that the arrangement in fact distributes power as would a limited partnership; or (2) the partner or venturer is so inexperienced and unknowledgeable in business affairs that he is incapable of intelligently exercising his partnership or venture powers; or (3) the partner or venturer is so dependent on some unique entrepreneurial or managerial ability of the promoter or manager that he cannot replace the manager of the enterprise or otherwise exercise meaningful partnership or venture powers. 645 F.2d at 424. We have examined the record in this case carefully. We agree with the district court that there is no issue of material fact in dispute which would establish that Odom did not have the power under the agreement to exercise his partnership functions. Odom was merely a minority partner who could not control the outcome of partnership business. That his partners did not inform him of their decisions may be a violation of state partnership law, but in the context of this case does not constitute such a deprivation of meaningful partnership authority that his interest becomes a security. The fatal flaw in the appellant’s argument is the failure to recognize that the anti-fraud provisions were not intended to remedy every instance of common law fraud. Marine Bank v. Weaver, 455 U.S. 551, 556, 102 S.Ct. 1220, 1223, 71 L.Ed.2d 409 (1982). Nor are they to remedy every wrong that occurs in a partnership scheme. Where, as here, the" }, { "docid": "17225996", "title": "", "text": "Tenth Circuit applies a \"strong presumption that an interest in a general partnership is not a security\" whenever a partnership agreement \"allocates powers to general partners that are specific and unambiguous” and provide those partners \"with access to information and the ability, to protect their investment.” Shields, 744 F.3d at 643-44 (quoting Banghart, 902 F.2d at 808). This presumption can be rebutted in three non-exhaustive situations: (1), an agreement among the parties leaves so little power in the hands of the partner or venturer that the arrangement in fact distributes power as would a limited partnership; or (2) the partner or venturer is so inexperienced and unknowledgeable in business affairs that he is incapable of intelligently exercising his partnership or venture powers; or (3) the partner or venturer is so dependent on some unique entrepreneurial or managerial ability of the promoter or manager that he cannot replace the manager of the -enterprise- or otherwise exercise. meaningful partnership, or venture powers. Shields, 744 F.3d at 643-44 (quotation omitted) (adopting approach set forth in Williamson v. Tucker;-MS F.2d 404, 424 (5th Cir. 1981)). Given the various important differences between general partnerships and LLCs, the Court will not apply any such presumption in this case. See Great Lakes Chem. Gorp. v. Monsanto Co., 96 F.Supp.2d 376, 391-92 (D.Del.2000) (\"the grounds for creating a per se rule, or at least a presumption, that interests in general partnerships are not securities are lacking in the context of LLCs.”). .However, the Tenth Circuit has made clear that the considerations relevant to the third element. of the Howey test apply regardless of the label given the investment relationship. See Shields, 744 F.3d at 645 (\"we view the Williamson approach as a supplement to controlling Supreme Court and circuit precedent in determining if allegations are sufficient to raise a fact question regarding whether a particular investment is a security”); see also Maritan, 875 F.2d at 1458. . Moreover, even if plaintiffs argued — which they do not — that Mr. MacDonald and .Mr, Smythe continued to exceed their authority after the execution of the QCE Parent LLC agreement," }, { "docid": "9559002", "title": "", "text": "be characterized for some purposes as a general partnership may nonetheless give rise to a finding that security interests have been created. Judge Randall opined: [A]n investor who claims his general partnership or joint venture interest is an investment contract has a difficult burden to overcome____ Such an investor must demonstrate that, in spite of the partnership form which the investment took, he was so dependent on the promoter or on a third party that he was in fact unable to exercise meaningful partnership powers. A general partnership or joint venture interest can be designated a security if the investor can establish, for example, that (1) an agreement among the parties leaves so little power in the hands of the partner or venturer that the arrangement in fact distributes power as would a limited partnership; or (2) the partner or venturer is so inexperienced and unknowledgeable in business affairs that he is incapable of intelligently exercising his partnership or venture powers; or (3) the partner or venturer is so dependent on some unique entrepreneurial or managerial ability of the promoter or manager that he cannot ... exercise meaningful partnership or venture powers. Id. at 424 (footnotes omitted). The holding of Professional Associates, and the dicta of Williamson, therefore do not conflict with the decisions in Goodwin and the other cases which hold outright that general partnership interests formed in accordance with state laws which comport with the requirements of the Uniform Partnership Act are not securities. See Goodwin, 730 F.2d at 112 (Seitz, concurring) (stating that the Court’s conclusion was not inconsistent with the dicta in Williamson). This Court believes that the decisions in these cases should and perhaps do represent the law in the Ninth Circuit. The difficulty is that having been given several apparent opportunities to adopt the position of the Goodwin Court, this Circuit has thus far declined to do so. Compare Parvin v. Davis Oil Co., 524 F.2d 112, 115-16 (9th Cir.1975) (holding that a fractional interest in oil and gas leases is a security where efforts made by the non-investor “are the undeniably significant ones," }, { "docid": "7449470", "title": "", "text": "others might also exist where the partners are forced to rely on some particular non-replaceable expertise on the part of a promoter or manager. Even the most knowledgeable partner may be left with no meaningful option when there is no reasonable replacement for the investment’s manager. For example, investors may be induced to enter a real estate partnership on the promise that the partnership’s manager has some unique understanding of the real estate market in the area in which the partnership is to invest; the partners may have the legal right to replace the manager, but they could do so only by forfeiting the management ability on which the success of the venture is dependent. Or investors may purchase joint venture interests in an operating business in reliance on the managing partner’s unusual experience and ability in running that particular business; again, a legal right of control would have little val ue if the partners were forced to rely on the manager’s unique abilities. We must emphasize, however, that a reliance on others does not exist merely because the partners have chosen to hire another party to manage their investment. The delegation of rights and duties-standing aloner-does not give rise to the sort of dependence on others which underlies the third prong of the Howey test. An investor who retains control over his investment has not purchased an interest in a common venture “premised on the reasonable expectation of profits to be derived from the entrepreneurial or managerial efforts of others,” even if he has contracted with the vendor for the management of the property. Fargo Partners v. Dain Corp., supra; Schultz v. Dain Corp., supra. So long as the investor retains ultimate control, he has the power over the investment and the access to information about it which is necessary to protect against any unwilling dependence on the manager. It is not enough, therefore, that partners in fact rely on others for the management of their investment; a partnership can be an investment contract only when the partners are so dependent on a particular manager that they cannot replace" }, { "docid": "1514863", "title": "", "text": "apply to general partners. Odom v. Slavik, 703 F.2d 212, 215 (6th Cir.1983); Frazier v. Manson, 651 F.2d 1078, 1080 (5th Cir.1981). The reason general partners are usually held not covered under the securities laws is that they are entrepreneurs, not investors, and have the ability to take care of their own interests because of the inherent powers available to them. General partners may act on behalf of the partnership and can bind their partners by their actions. They may dissolve the partnership, and they are personally liable for all liabilities of the partnership. Limited partners, on the other hand, do not share the kind of authority wielded by general partners. Their liability for the partnership is limited to the amount of their investment. They cannot ordinarily dissolve the partnership, nor can they bind other partners. Further, they have little or no authority to take an active part in the management of the partnership. A limited partner’s position is analogous to that of a stockholder in a corporation. Limited partnership interests may be considered a security within the statutory definition. E.g., Sibel v. Scott, 725 F.2d 995, 998 (5th Cir.), cert. denied, 467 U.S. 1242, 104 S.Ct. 3515, 82 L.Ed.2d 823 (1984). There are, however, instances in which even a general partnership interest may be considered a security. Williamson, 645 F.2d at 422. Whether a general partner’s or joint venturer’s interest may be considered a security depends upon whether: (1) an agreement among the parties leaves so little power in the hands of the partner or venturer that the arrangement in fact distributes power as would a limited partnership; or (2) the partner or venturer is so inexperienced and unknowledgeable in business affairs that he is incapable of intelligently exercising his partnership or venture powers; or (3) the partner or venturer is so dependent on some unique entrepreneurial or managerial ability of the promoter or manager that he cannot replace the manager of the enterprise or otherwise exercise meaningful partnership or venture powers. Id. at 424. Nevertheless, a strong presumption remains that a general partnership or joint venture interest is" }, { "docid": "4544979", "title": "", "text": "the hands of the partner or venturer that the arrangement in fact mimics a limited partnership; or (2) the partner or venturer is so inexperienced and unknowledgeable in business affairs that he is incapable of intelligently exercising his partnership or venture powers; or (3) the partner or ven-turer is so dependent on some unique entrepreneurial or managerial ability of the promoter or manager that he cannot replace the manager of the enterprise or otherwise exercise meaningful partnership or venture powers.”. Id. at 611, 75 Cal. Rptr.3d 795. The distribution of power under the Agreement accorded Sato with full control of the “partnership” as (1) he was the owner of the property; (2) he was the general contractor of the construction; (3) he was the broker in selling the property; and (4) Williams had no power, expertise, or desire, to engage in the construction and sale of the property. If it was a partnership, Williams would be a typical “passive” partner or venturer whose sole responsibility is to make capital investment in exchange for a return of the fixed interest plus property value appreciation. In conclusion, the transaction between the parties constitutes an investment contract under the federal test. Therefore, it is a security as defined under Cal. Corp. Code § 25019. With this Court’s finding of fraud in connection with this transaction in Plaintiffs § 523(a)(2) claim, Defendant also committed fraud in connection with the sale of a security. Conclusion Plaintiff has met his burden of proving by a preponderance of evidence that Defendant engaged in fraud in soliciting an investment from Plaintiff in the Lynnfield Project. The transaction involved a sale or an offer of a security. Therefore, Plaintiffs claim is not dischargeable under both §§ 523(a)(2) and (a)(19). Claim Amount Regarding the amount of claim, Plaintiff seeks damages of $150,000 plus interest at the federal interest rate from January 1, 2010. Defendant has objected, contending that $30,000 was paid and received by Plaintiff in 2007 and there was no basis for a provision of interest. It is unclear why Plaintiff accumulated interest from January 2010. Plaintiff also needs" }, { "docid": "6941946", "title": "", "text": "partners may be an investment contract with respect to the other partners. In such a case the agreement allocates partnership power as in a limited partnership, which has long been held to be an investment contract. Similarly, one would not expect partnership interests sold to large numbers of the general public to provide any real partnership control; at some point there would be so many partners that a partnership vote would be more like a corporate vote, each partner’s role having been diluted to the level of a single shareholder in a corporation. Such an arrangement might well constitute an investment contract. 645 F.2d at 422-23 (citations omitted). The Williamson court itself acknowledged, however, that the exception it would carve out to the general rule is a narrow one. [A]n investor who claims his general partnership or joint venture interest is an investment contract has a difficult burden to overcome. On the face of a partnership agreement, the investor retains substantial control over his investment and an ability to protect himself from the managing partner or hired manager. Such an investor must demonstrate that, in spite of the partnership form which the investment took, he was so dependent on the promoter or on a third party that he was in fact unable to exercise meaningful partnership powers. A general partnership or joint venture interest can be designated a security if the investor can establish, for example, that (1) an agreement among the parties leaves so little power in the hands of the partner or venturer that the arrangement in fact distributes power as would a limited partnership; or (2) the partner or venturer is so inexperienced and unknowledgeable in business affairs that he is incapable of intelligently exercising his partnership or venture powers; or (3) the partner or venturer is so dependent on some unique entrepreneurial or managerial ability of the promoter or manager that he cannot replace the manager of the enterprise or otherwise exercise meaningful partnership or venture powers. Id. at 424 (emphasis added). If the reasoning in Williamson is accepted, then Goodwin’s position might be more substantial" }, { "docid": "22700452", "title": "", "text": "themselves oil exploration firms; the partners in Sloan and Hirsch were professional brokers contesting the sale to them of partnerships in brokerage firms; and the partners in Oxford Finance Co. were business corporations. These purchasers or partners were well able to protect themselves. But the same might not be true in other cases. A scheme which sells investments to inexperienced and un-knowledgeable members of the general public cannot escape the reach of the securities laws merely by labelling itself a general partnership or joint venture. Such investors may be led to expect profits to be derived from the efforts of others in spite of partnership powers nominally retained by them. A genuine dependence on others might also exist where the partners are forced to rely on some particular non-replaceable expertise on the part of a promoter or manager. Even the most knowledgeable partner may be left with no meaningful option when there is no reasonable replacement for the investment’s manager. For example, investors may be induced to enter a real estate partnership on the promise that the partnership’s manager has some unique understanding of the real estate market in the area in which the partnership is to invest; the partners may have the legal right to replace the manager, but they could do so only by forfeiting the management ability on which the success of the venture is dependent. Or investors may purchase joint venture interests in an operating business in reliance on the managing partner’s unusual experience and ability in running that particular business; again, a legal right of control would have little value if the partners were forced to rely on the manager’s unique abilities. We must emphasize, however, that a reliance on others does not exist merely because the partners have chosen to hire another party to manage their investment. The delegation of rights and duties-standing alone-does not give rise to the sort of dependence on others which underlies the third prong of the Howey test. An investor who retains control over his investment has not purchased an interest in a common venture “premised on the reasonable" }, { "docid": "4444551", "title": "", "text": "Bank v. Commercial Credit, 651 F.2d 1174, 1181 n. 9 (6th Cir.1981) [recognizing this view among the circuits]. The appellant urges that under this standard he is entitled to the protection of the anti-fraud provisions of the ’34 Act. He contends, that at a minimum, he has established an issue of material fact in dispute as to whether his general partnership interest is merely a nominal one. He asserts that he was effectively prevented from exercising any managerial functions. Normally, a-general partnership interest is not considered a “security”. New York Stock Exchange v. Sloan, 394 F.Supp. 1303 (S.D.N.Y.1975); Hirsch v. Dupont, 396 F.Supp. 1214 aff’d 553 F.2d 750 (2nd Cir. 1977); Williamson v. Tucker, 645 F.2d 404 (5th Cir.1981). The managerial powers vested in general partners and the express right of inspection of documents gives them the kind of leverage and ability to protect themselves that takes them outside the intended scope of the 34 Act. See Hirsch v. Dupont, supra; Williamson v. Tucker, supra. The appellant, however, contends that the court should not have ruled as a matter of law. In Williamson, the Fifth Circuit noted that there will be cases in which a general partner can show, by meeting a substantial burden of proof, that “in spite of the partnership form which the investment took, he was so dependent on the promoter of the third party that he was in fact unable to exercise meaningful partnership powers. .. ” 645 F.2d at 423. The court noted: A general partnership or joint venture interest can be designated a security if the investor can establish, for example, that (1) an agreement among the parties leaves so little power in the hands of the partner or venturer that the arrangement in fact distributes power as would a limited partnership; or (2) the partner or venturer is so inexperienced and unknowledgeable in business affairs that he is incapable of intelligently exercising his partnership or venture powers; or (3) the partner or venturer is so dependent on some unique entrepreneurial or managerial ability of the promoter or manager that he cannot replace the" }, { "docid": "7449469", "title": "", "text": "restaurant. 324 F.Supp. at 645. The Court of Appeals for the Eighth Circuit was careful to note, in deciding Fargo Partners, that it was “not a ease where a small investor is helplessly reliant on the promoter’s efforts because of lack of business knowledge, finances, or control over the operation.” 540 F.2d at 915. The purchasers in Ballard & Cordell were themselves oil exploration firms; the partners in Sloan and Hirsch were professional brokers contesting the sale to them of partnerships in brokerage firms; and the partners in Oxford Finance Co. were business corporations. These purchasers or partners were well able to protect themselves. But the same might not be true in other cases. A scheme which sells investments to inexperienced and unknowledgeable members of the general public cannot escape the reach of the securities laws merely by labelling itself a general partnership or joint venture. Such investors may be led to expect profits to be derived from the efforts of others in spite of partnership powers nominally retained by them. A genuine dependence on others might also exist where the partners are forced to rely on some particular non-replaceable expertise on the part of a promoter or manager. Even the most knowledgeable partner may be left with no meaningful option when there is no reasonable replacement for the investment’s manager. For example, investors may be induced to enter a real estate partnership on the promise that the partnership’s manager has some unique understanding of the real estate market in the area in which the partnership is to invest; the partners may have the legal right to replace the manager, but they could do so only by forfeiting the management ability on which the success of the venture is dependent. Or investors may purchase joint venture interests in an operating business in reliance on the managing partner’s unusual experience and ability in running that particular business; again, a legal right of control would have little val ue if the partners were forced to rely on the manager’s unique abilities. We must emphasize, however, that a reliance on others does not" } ]

[ { "docid": "3903574", "title": "", "text": "The fourth point, viz., that a judgment dismissing the complaint could not be entered without notice to all of the contract holders of the association, rests upon a fundamental misconception of the meaning of rule 23(c) of the new Rules of Civil Procedure, 28 U.S.C.A. following section 723c. The notice therein provided for is required in case of voluntary dismissal or •compromise of a class action, so as to limit the power of the named plaintiff to terminate the suit which he has brought for others as well as for himself. It was never intended, of course, that such notice should be a condition precedent to dismissal by the court after hearing on the merits. See Moore Federal Practice, vol. 2, p. 2277 et seq. Tbe brl<\\fs. dlfuss all sorts of questions not raised m the court below but we need not consider them. The rule is ^ settled ** onJy ln exceptional cases wdl questions of whatever nature, not raised and Pr0Pf fy preserved for review m the \\naI c°urt> b£ notlcf aPPeaL 4 C.J.S. Appeal and Error, § 228, page 430; Blair v. Oesterlein Machine Co., 275 U.S. 220, 225, 48 S.Ct. 42, 79 L.Ed. 202; H. E. Wolfe Const. Co. v. Fersner, 4 Cir., 58 F.2d 27, 28, 29; Potts v. City of Utica, 2 Cir., 86 F.2d 616, 619; Marion Steam Shovel Co. v. Bertino, 8 Cir., 82 F.2d 945; New York Life Ins. Co. v. Doerksen, 10 Cir., 75 F.2d 96, 101. This salutary rule is of special importance in a case of this kind, where grave injustice> might well result from the consideration by this court of an apparent irregularity which could have been entirely cleared up if a question regarding it had been raised while the proofs were being taken. An appellate court, in the nature of things, cannot assume the functions of a special master and roam at large over the record, and any attempt on its part to do so would probably do' a great deal more harm than good, Especially is this true of a case involving application for a" } ]

[ { "docid": "8571386", "title": "", "text": "recommended that there be no accounting, and that Oil City’s counterclaim be dismissed and Socony’s action be dismissed as to John Roski, appellee in No. 9335. The court accepted the Master’s findings and conclusions with the exception that he refuses to enjoin the Oil City from the use of a flying white horse as a symbol in the State of Ohio. Oil City, appellant in No. 9336, insists that the court erred in dismissing its counterclaim. Socony in No. 9335 insists that the court should have enjoined the Oil City from using the trademark in any form and further that in any event, the use of the mark by Oil City should have been restricted to Cleveland, Ohio, and its vicinity. The Master found that Oil City was the first user of the flying horse as a trade symbol in the Cleveland territory and the court adopted this finding. Under Rule 53(e) (2), Rules of Civil Procedure, Title 28 U.S.C.A. following section 723c, the court should accept the Master’s findings of fact unless clearly erroneous. Socony filed no exceptions to the Master’s report and since the findings of the Master in this particular are supported by substantial evidence, we accept them. If nothing else appeared in the case, this finding would be sufficient to support Oil City’s counterclaim and it would be entitled to an injunction against Socony, but even though Oil City was the first user of the trademark, it is not thereby relieved of the charge of unfair competition and if this charge is supported by the findings of the Master, the court was correct in dismissing its counterclaim. Drake Medicine Co. v. Glessner, 68 Ohio St. 337, 67 N.E. 722; Globe-Wernicke Co. v. Safe-Cabinet Co., 92 Ohio St. 532, 112 N.E. 478; Safe-Cabinet Co. v. Globe Wernicke Co., 3 Ohio App. 24; Pillsbury-Washburn Flour Mills Co. v. Eagle, 7 Cir., 86 F. 608, 41 L.R.A. 162; Samson Cordage Works v. Puritan Cordage Mills, 6 Cir., 211 F. 603, L.R.A., 1915F, 1107. According to the findings of the Master the confusion which Oil City seeks to abate was" }, { "docid": "8571396", "title": "", "text": "right to their exclusive use rests upon the law of the several states and depends upon them for security and protection, the use of the mark extends to the whole state unless the state has, by statutory or common law declaration reduced the territorial limits of the mark to a smaller area. Hanover Star Milling Co. v. Metcalf, supra (concurring opinion of Justice Holmes, 240 U.S. at pages 424, 426, 36 S.Ct. at pages 364, 365, 60 L.Ed. 713). The General Code of the State of Ohio, Section 6240-1 to 4 inclusive, provides for the registration of trademarks of statewide application. Under the laws of Ohio a valid trademark territorially extends to the entire state. Independently of the statute, the trademark of Oil City extended to the entire state under the rule laid down in the case of Western Oil Refining Co. v. Jones, 6 Cir., 27 F.2d 205. There this court was dealing with the trademark “Silver Flash” used in selling gasoline in the trade territories of Wellsville and East Liverpool, Ohio. We decided that the seller of the gasoline under the trademark in the two communities was entitled to the exclusive use of the name within the entire state as territory which may reasonably be anticipated to be within normal business expansion in view of modern transportation methods and that many persons came from a distance to purchase. See also White Tower System v. White Castle System, 6 Cir., 90 F.2d 67; Grocers Baking Co. v. Sigler, 6 Cir., 132 F.2d 498 and Hemmeter Cigar Co. v. Congress Cigar Co., 6 Cir., 118 F.2d 64. The Master recommended that John Roski, appellee in No. 9335, be dismissed from the proceedings for failure of evidence, and the court confirmed him. Socony neither excepted to the Master’s finding nor objected to the court’s decree on this issue, but now urges that we reverse the judgment. We find it unnecessary to consider this point. The findings of fact by a Master cannot be reviewed upon appeal where there are no exceptions to his report and this is especially true where there" }, { "docid": "7827780", "title": "", "text": "business or property by reason of anything forbidden in the Anti-Trust Laws “And shall recover three fold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee”. A long line of decisions hold that a suit in equity does not lie under this section; that an action thereunder is an action at law as to which the parties are. entitled to a jury trial by virtue of the Seventh Amendment to the Constitution. Moore et al. v. Backus et al., 7 Cir., 78 F.2d 571, 101 A.L.R. 379, Certiorari Denied 296 U.S. 640, 56 S.Ct. 173, 80 L.Ed. 455; Hansen Packing Co. v. Swift & Co., D.C., 27 F.Supp. 364; Farmers Co-op. Oil Co. v. Socony-Vacuum Co., Inc., D.C., 43 F.Supp. 735. It is of the essence, in determining whether or not a jury trial should be granted, to make inquiry as to what the plaintiffs’ bill of complaint seeks and whether it is, in ■its nature, either equitable or legal. This is true for the right to a jury trial would depend upon the facts stated in the complaint. I think a fair examination of the pleadings will disclose that the only relief claimed is for a money judgment, together with liquidated damages and attorneys’ fees, as provided by the Act. There is no equitable relief asked for in any way whatsoever. If the issues tendered by the pleadings are purely legal, the parties are entitled to a jury trial as of right under Rule 38(a) and demanded under Rule 38(a) and (b). Hargrove v. American Cent. Ins. Co., 10 Cir., 125 F.2d 225; Schoenthal v. Irving Trust Co., 287 U.S. 92, 95, 53 S.Ct. 50, 77 L.Ed. 185. Rule 38 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, abolishes any distinction between law and equity. Conn v. Kohlemann, D.C., 2 F.R.D. 514. The distinction between law and equity, abolished by the new rules, is in procedure and not one between remedies, and a distinction still remains between jury actions and nonjury actions. This remains in the same manner as" }, { "docid": "11890284", "title": "", "text": "full agreement with the opinion by Judge Maris, speaking for the Court of Appeals of the Third Circuit, in Bendix Aviation Corp. v. Glass, 195 F.2d 267. We turn now to the merits. While a criminal prosecution to punish a conspiracy to restrain interstate commerce may be brought, as against all the conspirators, in any district where overt acts in furtherance of the conspiracy have been committed, see United States v. Socony-Vacuum Oil Co., Inc., 1940, 310 U.S. 150, 250 et seq., 60 S.Ct. 811, 84 L.Ed. 1129, the Congress has seen fit to impose more restrictive venue requirements as applied to suits by private parties to redress injuries resulting from such conspiracies. Section 4 of the Clayton Act reads as follows, 38 Stat. 731, 15 U.S.C.A. § 15: “Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.” Appellant asserts that venue as to appellee is properly laid in the district of Massachusetts under this section, in that Brown and Connolly, Inc., and E. F. Mahady & Co., both of which are clearly present in Massachusetts for venue purposes, are “agents” of appellee within the meaning of §4. The affidavits and answers to interrogatories upon which the issue was tried show that neither of the Massachusetts corporations is affiliated with appellee. Each independently operates its own business, pays its own expenses, solicits its own customers, and conducts its affairs without direction, control, or interference by appel-lee, selling at wholesale and retail books published by numerous other publishers in addition to those published’ by. appellee. However, both E. F. Mahady & Co. and Brown and Connolly, Inc., take books from appellee on consignment under contracts which it is asserted provide a basis for saying that these Massachusetts distributors" }, { "docid": "7812438", "title": "", "text": "his findings of fact and conclusions of law. Four years later,, on June 1, 1948, he so reported to the court. On January 14, 1949,' his findings of fact and conclusions of law were sustained over-various objections of the parties. Judgment was accordingly given for the use plaintiffs in the sum of $13,765,96, with interest at the rate of six percentum per annum from October 8, 1943, as to the Building Company, and from April 22, 1944, as to the surety company. The judgment included costs, except that the costs of reference were ordered to be divided. Both sides appealed. We discuss first the status of the findings of the special master. Rule 53(e) (2) of the Federal Rules of Civil Procedure, 28 U.S.C.A., provides: “* * * In Non-Jury Actions. In an action to be tried without a jury the court shall accept the master’s findings of fact unless clearly erroneous. * • * * ” This is like the rule of the cases as laid down in Camden v. Stuart, 1891, 144 U.S. 104, 118, 12 S.Ct. 585, 590, 36 L.Ed. 363. The circumstances there were somewhat-similar to those in the case at bar. The-Court said: “In cases of this kind, referred to a master to state an account, depending, as they do, upon an examination of books, upon the oral testimony of witnesses, and' jperhaps, as in this case, upon the opinions-of an expert, ‘-his conclusions have every reasonable presumption in their favor, and are not to be set aside or modified unless, there clearly appears to have been error or mistake on his part’ ”, citing Tilghman v.. Proctor, 1887, 125 U.S. 136, 8 S.Ct. 899, 31 L.Ed. 664, and other cases. See, also, Crawford v. Neal, 1891, 144 U.S. 585, 596, 12 S.Ct. 759, 36 L.Ed. 552. Rule 53(e) (2) is in terms designed to govern the conduct of the trial court. This is pointed out in Adams County v. Northern Pac. Ry. Co., 9 Cir., 1940, 115 F.2d 768, 779, in the following context, “This rule, of course, regulates the conduct of the trial" }, { "docid": "11023251", "title": "", "text": "Bradley was authorized both by the corporation and by contracts between the corporation and its depositors to handle all moneys and securities deposited with the corporation or acquired by the corporation in its trading transactions. These securities were delivered by Bradley as collateral for loans made in his name for the account of the corporation, and were returned to him when the loans were repaid months before the bankruptcy proceedings were filed. We see no force in the contention that the return of the securities to Bradley when the loans were repaid was improper and invalid. Having received the securities from Bradley, the status quo existing before the loans was restored when the securities were returned to Bradley. Under the facts of the case we think that the defendant in the lower court, cross-appellant here, was entitled to a decree in its favor. The judgment against the bank from which it cross-appealed is reversed; the judgment against the Trustee from which he appealed is affirmed. Under both the new and the old rules the recognized principle in the Federal courts for dealing with the master’s findings of fact which are in the nature of conclusions or inferences is that no such finding will be given any great weight since the court is in as good a position to make or draw them as the master. Rule 63(e) (2), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. Stewart v. Ganey, 5 Cir., 116 F.2d 1010; Budd Manufacturing Co. v. C. R. Wilson Body Co., 6 Cir., 21 F. 2d 803, 804; Kycoga Land Co., Inc., v. Kentucky Coal Corp., 6 Cir., 100 F.2d 894, 896. Where the facts are not in dispute, inferences and conclusions drawn by the trial court are not binding on the appellate court, which remains free to draw inferences and conclusions which in its opinion the findings reasonably induce. Rule 52(a), Federal Rules of Civil Procedure; Kuhn v. Princess Lida of Thurn & Taxis, 3 Cir., 119 F. 2d 704; Adams County v. Northern Pac. R. Co., 9 Cir., 115 F.2d 768, 779; Carter Oil" }, { "docid": "5162233", "title": "", "text": "8. Speaking of the right to recover damages under the anti-trust law, the Supreme Court in Keogh v. Chicago & North Western R. Co. et al., 260 U.S. 156, 43 S.Ct. 47, 50, 67 L.Ed. 183, said: “* * * Under section 7 of the AntiTrust Act [15 U.S.C.A. § 15 note], as under section 8 of the Act to Regulate Commerce [49 U.S.C.A. § 8], (Pennsylvania R. Co. v. International Coal Mining Co., 230 U.S. 184, 33 S.Ct. 893, 57 L.Ed. 1446, Ann.Cas. 1915A, 315), recovery cannot be had unless it is shown, that, as a result of defendants’ act, damages in some amount susceptible of expression in figures resulted. These damages must be proved by facts from which their existence is logically and legally inferable. They cannot be supplied by conjecture. To make proof of such facts would be impossible in the case before us. It is not like those cases where a shipper recovers from the carrier the amo Lint by which its exaction exceeded the legal rate.” Though an action to recover a freight overcharge is in the nature of a tort (Lewis-Simas-Jones Co. v. Southern Pacific Co., 283 U.S. 654, 51 S.Ct. 592, 75 L.Ed. 1333), yet the amount of damages recoverable is fixed or is at least susceptible of being made certain by mathematical calculation, and hence, they are liquidated damages. On the other hand, an action to recover treble damages under the Clayton Act is based upon tort and the amount of compensatory damages which may be recovered can not be determined and is not fixed by statutory provisions, but the damages are unliquidated. We think the decision of the trial court is in accord with the authorities. Farmers Coop. Oil Co. v. Socony-Vacuum Oil Co. et al., 8 Cir., 133 F.2d 101; Northwestern Oil Co. v. Socony-Vacuum Oil Co. et al., 7 Cir., 138 F.2d 967; Leonard v. Socony-Vacuum Oil Co., D.C., 42 F.Supp. 369; H. E. Miller Oil Co. v. Socony-Vacuum Oil Co., D.C. 37 F.Supp. 831; Gabbert et al. v. Atchison, T. & S. F. Ry. Co., 5 Cir., 93" }, { "docid": "2964391", "title": "", "text": "recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.” . Section 2(c) provides: “It shall be unlawful for any person engaged in commerce, in the course of such commerce, to pay or grant, or to receive or accept, anything of value as a commission, brokerage, or other compensation, or any allowance or discount in lieu thereof, except for services rendered in connection with the sale or purchase of goods, wares, or merchandise, either to the other party to such transaction or to an agent, representative, or other intermediary therein where such intermediary is acting in fact for or in behalf, or is subject to the direct or indirect control, of any party to such transaction other than the person by whom such compensation is so granted or paid.” 49 Stat. 1527, 15 U.S.C.A. § 13(c). The complaint also alleged violations of Sections 1 and 2 of the Sherman Act, 15 U.S.C.A. §§ 1, 2, and included two common law counts. During trial, each of these charges was either dismissed or withdrawn. . The District Court certified its Order for appeal under 28 U.S.C. § 1292(b) and also directed the entry of final judgment under Rule 54(b), Fed.R.Civ.P., 28 U.S.C. We granted plaintiffs’ application for permission to appeal under 28 U.S.C. § 1292(b). The Opinion of the District Court is reported at 197 F.Supp. 849 (E.D.Pa. 1961); see also 145 F.Supp. 820 (1956) (opinion denying defendant’s Motion to Dismiss Complaint); 198 F.Supp. 429 (1961) (memorandum on defendant’s Motion to Review Clerk’s Taxation of Costs). . Although Rosengarten was primarily a wholesaler, about five per cent of his purchases were made by him as a broker. With respect to these purchases, he billed his clients for the terminal charges together with the purchase price. . See Note 1, supra. . Miller Motors, Inc. v. Ford Motor Co., 252 F.2d 441 (4 Cir. 1958); Northwestern Oil Co. v. Socony-Vacuum Oil Co., 138 F.2d 967 (7 Cir. 1943), cert. denied, 321 U.S. 792, 64 S.Ct. 790, 88 L.Ed. 1081 (1944) ; Leonard v. Socony-Vacuum Oil Co.," }, { "docid": "13829096", "title": "", "text": "trustee, as defined in the trust indenture, adequately support its conduct and action in attempting to secure consents of certificate holders, so long as it honestly believed that in doing so it was acting for the best interest of the certificate holders; and the activity of the trustee in attempting to secure consents' was the only means of obtaining action on the plan. In the words of the District Judge: “If the certificate holders were not overreached or caused to act to their harm, through fraudulent under or over-statements as to the merits of the plan, the trustee was justified in attempting actively to secure consents; and, if its representations as to the beneficial provisions of the plan were made in good faith and in an honest belief that the acceptance of the plan was in the best interest of the certificate holders, such activities now should not be nullified and condemned.” The District Court overruled the objections and exceptions of appellants to the report of the master sustaining the validity of the trustee’s acceptance of the plan and confirmed the report. The court specifically found that the National City Bank of Cleveland, Trustee, in soliciting consents to and approvals of the plan from the holders of the trust certificates of equitable ownership, was guilty of no fraud, made no misrepresentations, and neither withheld nor failed to disclose any material information ; and that none of the consents and approvals procured by the trustee was obtained through any improper conduct of the trustee, or as a result of any abuse of its fiduciary relationship. This finding of fact was amply justified by the evidence, viewed in entirety; and, as we have previously observed, Civil Procedure Rule 52 (a), 28 U.S.C.A. following section 723c, provides that the findings of fact of a District Court should not be set aside unless clearly erroneous and the findings of a master, to the extent that the court adopts them, shall be considered the findings of the court. See United States for Use of Chamberlain Metal Weather-Strip Co. v. Madsen Const. Co., 6 Cir., 139" }, { "docid": "20977293", "title": "", "text": "compensation based on a contrary view. Rule 53(e) (2) of the Federal Rules of Civil Procedure. See Tilghman v. Proctor, 125 U.S. 136, 149-150, 8 S.Ct. 894, 31 L.Ed. 664; Davis v. Schwartz, 155 U.S. 631, 636-637, 15 S.Ct. 237, 39 L.Ed. 289.” The Circuit Courts of Appeal have adopted the rule in exactly the same manner, following the express language of the rules of Civil Procedure. Thus, in Arrow Distilleries (Mich.) v. Arrow Distilleries (Ill.), 7 Cir., 1941, 117 F.2d 636, certiorari denied 314 U.S. 633, 638, 62 S.Ct. 67, 86 L.Ed. 508, the court reversed the District Court for rejecting the Master’s findings, with the following comment: “The only question of merit presented by this appeal is whether the court erred in rejecting the master’s findings of fact. We think it did. Rule 53(e) (2), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723 (c), provides that in an action to- be tided without a jury the court shall accept the master’s findings of fact unless they are clearly erroneous * * * Under this rule the court cannot reject the master’s findings of fact unless they are clearly erroneous. We think they were not clearly erroneous in this case. They were not only supported by substantial evidence, but a reading of the evidence convinces us that they were supported by a preponderance thereof.” And in O’Hara v. Murphy, 137 F.2d 154, 155, the First Circuit Court of Appeals upheld the District Court in its reliance upon the Master’s findings of fact, saying: “We have carefully examined the record and cannot say that the master and the district court were clearly erroneous in concluding that Mrs. O’Hara returned the insurance policies on the 21st of September and relinquished all her rights in them.” In all of these cases the language seems to be clear to the effect that the Master’s findings of fact should not be disturbed unless they are clearly erroneous. And the authority for this proposition is plentiful. See Socony-Vacuum Oil Co., Inc., v. Oil City Refiners, Inc., 6 Cir., 1943, 136 F.2d 470, certiorari" }, { "docid": "11005539", "title": "", "text": "his time card preceded 5 minutes before the regular starting time.” The district court concluded as a matter of law that the “plaintiffs have established that work was done by some of them which the Company did not give them credit for, and the computation thereof, on the basis above stated, forms a basis for recovery of overtime pay.” Judgment was entered in favor of the employees on the basis of this formula; an equal amount was added thereto as liquidated damages; and the plaintiffs were allowed, as costs to be taxed against the appellant, $2,000 as fee compensation to their attorneys. The compensation of the special master was taxed to the appellant company. The judgment of the district court must be reversed. There was abundant substantial evidence to support the findings of the special master and it could not appropriately be said that such findings are clearly erroneous. Civil Procedure Rule 53 (e) (2), 28 U.S.C.A. following section 723c, distinctly provides that “in an action to be tried without a jury the court shall accept the master’s findings of fact unless clearly erroneous.” The district court is as much obliged to accept the findings of a master, unless clearly erroneous, as this court is to accept the findings of the district court unless clearly erroneous. See Santa Cruz Oil Corporation v. Allbright-Nell Co., 7 Cir., 115 F.2d 604, 607. Cf. Morris Plan Industrial Bank v. Henderson, 2 Cir., 131 F.2d 975, 976. Rule 53(e) (2), as well as Rule 52(a) which binds this court to accept the findings of the district judge unless clearly erroneous, is based on the same principle, long recognized in law, that the master or judge who personally observes the witnesses is in better position to pass upon conflicting testimony and the credibility of witnesses than is a tribunal which has neither seen nor heard the witnesses. Moreover, the arbitrary formula applied by the district judge, in lieu of acceptance of the master’s findings, produced a judgment based upon surmise and conjecture, which cannot be sustained. See Townsend v. New York Cent. R. Co., 7" }, { "docid": "1131038", "title": "", "text": "to only one such statement. For lack of objection and specific motion, it is argued that an appellate court may not interfere. As to the ordinary case, we agree, but we have never understood it to be the law that flagrantly abusive statements, unsupported by the evidence and introducing matters clearly irrelevant to the jury’s deliberation of the issues on the law and evidence, in the absence of an admonition to the jury, are immune from appellate redress simply because there was not an objection to each such statement. This field of improper trial arguments is not one where the citation of cases is of much help, but, to the extent that precedents are at all relevant, there is authority for the proposition that lack of an objection is not always a bar to correction and that, in the obvious case such as this, plain error may, indeed must, be noticed and rectified. New York Central R. R. v. Johnson, 1929, 279 U.S. 310, 318, 49 S.Ct. 300; Aetna Life Ins. Co. of Hartford, Conn. v. Kelley, 8 Cir., 1934, 70 F.2d 589, 594, 93 A.L.R. 471; Rouse v. Burnham, 10 Cir., 1931, 51 F.2d 709, 713. See also United States v. Socony-Vacuum Oil Co., 1940, 310 U.S. 150, 239, 60 S.Ct. 811, 84 L.Ed. 1129. As we are convinced that the jury did not have an opportunity fairly to pass upon the real issues because of the conduct of the attorneys, no purpose can be served in discussing the other matters raised on this appeal. Minneapolis, St. P. & S. Ste. M. Ry. v. Moquin, 1931, 283 U.S. 520, 51 S.Ct. 501, 75 L.Ed. 1243. The judgment of the district court will be reversed and the cause remanded for a new trial, each party to bear its own costs on this appeal. . 35 Stat. 65 (1908), as amended, 53 Stat. 1404 (1939), 45 U.S.C.A. § 51 et seq. . Both plaintiff and defendant are citizens of Pennsylvania. . 35 Stat. 65 (1908), as amended, 53 Stat. 1404 (1939), 45 U.S.C.A. § 51. . See annotation in 10 A.L.R.2d" }, { "docid": "9567867", "title": "", "text": "WOODROUGH, Circuit Judge. On November 22, 1935, the Corona Products, Inc., an Arkansas corporation, and J. J. Heifer of St. Louis, Missouri, entered into a written contract for the employment of Mr. Heifer as the corporation’s sales agent. Disputes arose between them, and on September 26, 1938, Mr. Heifer brought this suit in equity against the corporation for an accounting and recovery of commissions and to recover expenses and damages for which he claimed the corporation was obligated by reason of its alleged breaches of the contract. The issues were joined upon a third amended petition of the plaintiff, defendant’s answer thereto and plaintiff’s reply. The court referred the whole case to a master to take the testimony and to report findings of fact and conclusions of law. The master died after taking the testimony and before making his report, and a second master was appointed as “master in succession”. He considered the pleadings, the transcribed testimony and exhibits, and made report to the district court some nineteen months after his appointment. The district court, on consideration of the report, the plaintiff’s exceptions to it, the transcribed testimony and the exhibits, entered decree some four months later dismissing the case at plaintiff’s cost. Plaintiff appeals from the decree. At the outset we take occasion to point out that although the plaintiff’s petition prayed for the appointment of a master in the case, there was no showing that' any exceptional condition required such appointment for the whole case within the intendment of Rule 53, Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. “A reference to a master shall be the exception and not the rule”, and where, as in this case, nothing more was involved in the suit than to ascertain and adjudicate how much, if anything, this small defendant company owed its sales agent in respect to the contract it had with him, and where all the testimony was taken in less than four days of hearings, the duty of trying and deciding the case and of filing the findings of fact and conclusions of law supporting the" }, { "docid": "8571385", "title": "", "text": "a flying red horse, but denied it had sold any products in western Pennsylvania. It charged Socony had sold products throughout the State of Ohio and counterclaimed, alleging it was the sole owner of the mark and sought an injunction and an accounting from Socony. The Master concluded as a matter of law that Socony acquired no rights in the use of its trademark in the Cleveland trade territory until 1932 and that Oil City had made sufficient use of the mark of a flying horse to acquire a prior right therein before Socony entered the territory. The Master also concluded that the difference in color between a flying red horse and a flying white horse was not sufficient to avoid confusion in the public mind, but he concluded that because Oil City had in 1940 discontinued the use of all trademarks except a flying red horse, confusingly similar to the trademark of Socony, it was guilty of an unfair trade practice and should be permanently enjoined from the use of said mark. The Master recommended that there be no accounting, and that Oil City’s counterclaim be dismissed and Socony’s action be dismissed as to John Roski, appellee in No. 9335. The court accepted the Master’s findings and conclusions with the exception that he refuses to enjoin the Oil City from the use of a flying white horse as a symbol in the State of Ohio. Oil City, appellant in No. 9336, insists that the court erred in dismissing its counterclaim. Socony in No. 9335 insists that the court should have enjoined the Oil City from using the trademark in any form and further that in any event, the use of the mark by Oil City should have been restricted to Cleveland, Ohio, and its vicinity. The Master found that Oil City was the first user of the flying horse as a trade symbol in the Cleveland territory and the court adopted this finding. Under Rule 53(e) (2), Rules of Civil Procedure, Title 28 U.S.C.A. following section 723c, the court should accept the Master’s findings of fact unless clearly erroneous." }, { "docid": "23411208", "title": "", "text": "made no objections to any of these statements during the summation, however, and as it has failed to show any “flagrant abuse,” its present arguments have been waived. See United States v. Perry, 643 F.2d 38, 51 (2d Cir.), cert. denied, 454 U.S. 835, 102 S.Ct. 138, 70 L.Ed.2d 115 (1981); cf. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 238-39, 60 S.Ct. 811, 851, 84 L.Ed. 1129 (1940). Even were we to consider Kawasaki’s arguments, however, we would find them to be without merit. For example, although Brent’s letter to his psychiatrist was not physically admitted into evidence, the list of acts Brent could not perform was before the jury because the psychiatrist had read the list to the jury — without objection from Kawasaki. Much of the material in the letter was also testified to by other witnesses. Nor would the other statements of plaintiff’s counsel to which Kawasaki now objects require reversal. We agree that counsel’s references to his own hard work were out of place and that counsel could more properly have suggested that certain evidence did not present a complete picture without repeatedly referring to opposing counsel in such disparaging terms as “masters of the half-truth.” There is no indication in this case, however, that “the minds of the jurors [were] so influenced by such incidental statements ... that they would not appraise the evidence [as to Kawasaki’s negligence] objectively and dispassionately.” United States v. Socony-Vacuum Oil Co., 310 U.S. at 239, 60 S.Ct. at 851. 4. The Inconsistent Verdicts Finally, we find no merit in Kawasaki’s argument that it is entitled to a new trial on the ground that the jury’s finding that Cutro was not negligent in renting the Jet Ski to Brent was logically irreconcilable with the jury’s finding that Kawasaki was negligent in failing to provide adequate warnings. When a claim is made that a jury’s answers to special interrogatories are inconsistent, our responsibility as a reviewing court is to adopt a view of the case, if there is one, that resolves any seeming inconsistency. See Atlantic & Gulf Stevedores," }, { "docid": "12523930", "title": "", "text": "weight of the evidence. Brooklyn Eastern District Terminal v. United States, 287 U.S. 170, 177, 53 S.Ct. 103, 77 L.Ed. 240. The appellate court, however, has the final responsibility for the facts as well as the law and findings of the District Court will not stand where it proceeded on an erroneous application of a rule of evidence which leads it to an incorrect conclusion or its findings of fact are contrary to the clear weight of the evidence. The Ernest H. Meyer, 9 Cir., 84 F.2d 496. It is the duty of a shipowner or master to supply a seaworthy vessel for its employees and this does not depend on the exercise of reasonable care, but is absolute. The H. A. Scandrett, 2 Cir., 87 F.2d 708. A seaman does not assume the risk of injury even from obvious dangers if the proximate cause thereof is the failure of the shipowner or master to supply and keep in order proper appliances appurtenant to the ship and the same rule applies for failure to provide a safe place in which to work. Cleveland Cliffs Iron Company v. Martini, 6 Cir., 96 F.2d 632; Socony-Vacuum Oil Company v. Smith, 305 U.S. 424, 59 S.Ct. 262. The uncontroverted evidence in the case at bar shows that the pump with its rapidly moving and unguarded parts was located on one side of a narrow passageway directly opposite a guarded revolving fan and further shows that had the pump been guarded the libellant would not have fallen into it. This constituted an unsafe place in which to work and made the ship unseaworthy, and was the proximate cause of his injury. The libellant knew the pump was unguarded and that the floor around it and in the passageway was wet and oily. The rule of assumed risk or contributory neg ligence must be applied in admiralty under the doctrine of comparative negligence and neither is a bar to recovery but can be invoked only for the purpose of mitigating damages. Socony-Vacuum Oil Company v. Smith, supra. We must make such disposition of the -case" }, { "docid": "8571397", "title": "", "text": "that the seller of the gasoline under the trademark in the two communities was entitled to the exclusive use of the name within the entire state as territory which may reasonably be anticipated to be within normal business expansion in view of modern transportation methods and that many persons came from a distance to purchase. See also White Tower System v. White Castle System, 6 Cir., 90 F.2d 67; Grocers Baking Co. v. Sigler, 6 Cir., 132 F.2d 498 and Hemmeter Cigar Co. v. Congress Cigar Co., 6 Cir., 118 F.2d 64. The Master recommended that John Roski, appellee in No. 9335, be dismissed from the proceedings for failure of evidence, and the court confirmed him. Socony neither excepted to the Master’s finding nor objected to the court’s decree on this issue, but now urges that we reverse the judgment. We find it unnecessary to consider this point. The findings of fact by a Master cannot be reviewed upon appeal where there are no exceptions to his report and this is especially true where there are no objections to the court’s approval of the Master’s findings. Rule 53 (e) (2), Rules of Civil Procedure, Title 28, U.S.C.A. following section 723c; Coghlan v. South Carolina R. Co., 142 U.S. 101, 115, 12 S.Ct. 150, 35 L.Ed. 951; City of Cleveland v. Walsh Const. Co., 6 Cir., 279 F. 57; Hutchinson v. Fidelity Inv. Ass’n, 4 Cir., 106 F.2d 431,. 133 A.L.R. 1061. Judgment affirmed on both appeals. Socony and Oil City will each pay its own costs on these appeals and neither will recover any cost from the other. Appellee John Roski may recover his cost from appellant, Socony-Vacuum Oil Company." }, { "docid": "8571380", "title": "", "text": "HAMILTON, Circuit Judge. These are appeals from a judgment of unfair competition growing out of the use of conflicting trademarks. The questions presented are: First, whether the second user of one of various trademarks and composites of such trademarks sporadically used by the first user may be enjoined from competing with the latter; second, whether the court applied an erroneous conception of pertinent law in finding as a fact that the Oil City Refiners, Inc., appellee in No. 9335, changed the coloring and design of its trademark knowingly and in bad faith, thereby seeking' to profit by inducing the public to purchase its wares under the belief they were the goods of the SoconyVacuum Oil Company, appellant in No.-9335; third,' assuming that the court correctly applied the law, was its remedy adequate ? The court referred, the whole case to a Special Master to take testimony and report findings of fact and conclusions of law. On exceptions, the Master’s findings of fact were approved, but the court rejected his conclusions of law in one particular. We shall refer to appellant in No. 9335, plaintiff below, as “Socony” and appellee in No. 9335, defendant below, as “Oil City.” The Patent Office issued a certificate of trademark registration No. 83,100 to the Standard Oil Company of New York, predecessor of Socony, exemplified in the symbol of a flying horse in combination with the words “Pegasus Brand.” In the original registration statement, dated August 15, 1911, the applicant declared it theretofore had used the mark in the sale of naphtha and gasoline, oils and greases. Certificate of renewal was issued July. 28, 1931. On August 6, 1931, an additional certificate of registration, No. 287,746, was duly issued to Socony’s predecessor, extending the original mark to all of its petroleum products with or without admixture of other materials. The Socony and its predecessor used the registered mark from 1911 to 1932 only in the sale of products in foreign commerce. In April of 1932, Socony planned to use the mark wherever it sold its products in the United States and during that year had" }, { "docid": "8571387", "title": "", "text": "Socony filed no exceptions to the Master’s report and since the findings of the Master in this particular are supported by substantial evidence, we accept them. If nothing else appeared in the case, this finding would be sufficient to support Oil City’s counterclaim and it would be entitled to an injunction against Socony, but even though Oil City was the first user of the trademark, it is not thereby relieved of the charge of unfair competition and if this charge is supported by the findings of the Master, the court was correct in dismissing its counterclaim. Drake Medicine Co. v. Glessner, 68 Ohio St. 337, 67 N.E. 722; Globe-Wernicke Co. v. Safe-Cabinet Co., 92 Ohio St. 532, 112 N.E. 478; Safe-Cabinet Co. v. Globe Wernicke Co., 3 Ohio App. 24; Pillsbury-Washburn Flour Mills Co. v. Eagle, 7 Cir., 86 F. 608, 41 L.R.A. 162; Samson Cordage Works v. Puritan Cordage Mills, 6 Cir., 211 F. 603, L.R.A., 1915F, 1107. According to the findings of the Master the confusion which Oil City seeks to abate was of its own creation and it caused the unfair competition in trade for which it asks relief. There was no finding by the Master of unfair competition by Socony and Oil City makes no claim of unfair dealing by Socony, aside from technical trademark infringement. Rule 53(e) (2) does not operate to relieve this court of the burden of reviewing inferences or conclusions drawn by the Master and the trial court that the use by Oil City of the flying horse symbol to identify its trade and products constituted unfair competition. While accepting the facts competently found by the Master as correct, an appellate court remains free to draw the ultimate inferences and conclusions which, in its opinion, the findings reasonably induce. Kycoga Land Co. v. Kentucky River Coal Corporation, 6 Cir., 110 F.2d 894. The possessor of a trademark has no more right than other property owners to use it for the purpose of passing off, or attempting to pass off, on the public the goods or business of one person as and for" }, { "docid": "8571388", "title": "", "text": "of its own creation and it caused the unfair competition in trade for which it asks relief. There was no finding by the Master of unfair competition by Socony and Oil City makes no claim of unfair dealing by Socony, aside from technical trademark infringement. Rule 53(e) (2) does not operate to relieve this court of the burden of reviewing inferences or conclusions drawn by the Master and the trial court that the use by Oil City of the flying horse symbol to identify its trade and products constituted unfair competition. While accepting the facts competently found by the Master as correct, an appellate court remains free to draw the ultimate inferences and conclusions which, in its opinion, the findings reasonably induce. Kycoga Land Co. v. Kentucky River Coal Corporation, 6 Cir., 110 F.2d 894. The possessor of a trademark has no more right than other property owners to use it for the purpose of passing off, or attempting to pass off, on the public the goods or business of one person as and for the goods and business of another. The facts found by the Master show that long before Socony entered the State of Ohio, Oil City was using the symbol of a flying horse, but it did not confine itself to any particular color, nor to a single horse. It used horses in groups facing in opposite directions with or without wings and in some instances moving in an arc and for long periods of time, it made but little use of a horse or horses as trade emblems. Socony commenced business in Ohio in 1932 and expended large sums in advertising its products under the trademark of the flying red horse and it operated many oil stations using this trade emblem as identification of its products and the places where they were sold. After eight years of Socony’s business activities in this territory, Oil City commenced to use exclusively a trade emblem which is indistinguishable by the ordinary observer from Socony’s which emblem Oil City registered in the,State of Ohio after this action was begun. Color" } ]

[ { "docid": "19375619", "title": "", "text": "not timely, the lack of a contemporaneous objection to the prosecutor’s comments does not bar review by this court. In light of the substantial nature of the right involved, we have previously held that such comments constitute “plain error.” United States v. Young, No. 81-1536, slip op. at 10 (10th Cir. Feb. 22, 1983); United States v. Nolan, 416 F.2d 588, 594 (10th Cir.), cert. denied, 396 U.S. 912, 90 S.Ct. 227, 24 L.Ed.2d 187 (1969); Doty v. United States, supra, 416 F.2d at 890. Plain error may be noticed and corrected even absent an objection. See Fed.R.Crim.P. 52(b). Although a violation of a criminal defendant’s constitutional rights is not per se reversible error, the prosecution must demonstrate that the error was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Eberhardt v. Bordenkircher, 605 F.2d 275 (6th Cir.1979). In determining whether these prosecutorial comments were harmless error, however, we believe they must be examined in the context of the additional comments made by the government attorney. B. Comments on Defendant’s Silence at Time of Arrest. In Doyle v. Ohio, supra, the Court held that a suspect who has been apprised of his rights in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), is implicitly assured that his silence will not be used against him, and that the use of his resulting silence to impeach his testimony at trial is fundamentally unfair and violates the due process clause of the fifth amendment. We believe that the unfairness is even greater when, as in the instant case, the accused exercises his right to silence throughout the proceedings and does not testify in his own behalf. From the record before us, we have no difficulty in holding that the government attorney’s statements concerning Barton’s failure to explain to the police were such “that the jury would naturally and necessarily take it to be a comment on” Barton’s exercise of his right to remain silent. See Knowles v. United States, supra. The absence at trial of" } ]

[ { "docid": "8750054", "title": "", "text": "(emphasis added). During closing argument, the Government again pointed out that “not once did [Pando] ask why he had been handcuffed and detained in the interview.” (emphasis added). Thus, the Government referenced and elicited testimony regarding Pando’s silence both before and after he was Mirandized. See, e.g., United States v. Tenorio, 69 F.3d 1103, 1106 (11th Cir.1995) (holding that district court erred in concluding that evidence referred solely to pre-Miranda silence when government alluded to silence up to and including time spent with officers after being Mirandized). Accordingly, we need not address the issue of whether the Fifth Amendment privilege against self-incrimination applies to post-arrest, pr e-Miranda silence because each of the aforementioned statements include references to Pando’s post-arrest, post-Miranda silence, which is squarely governed by Miranda. The Supreme Court has adopted a strict prohibition against the use of post-Miranda silence at trial. See Miranda v. Arizona, 384 U.S. 436, 467-73, 86 S.Ct. 1602,16 L.Ed.2d 694 (1966); Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); Wainwright v. Greenfield, 474 U.S. 284, 291 n. 5, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986) (“the use of postarrest, post-Miranda warnings silence [is] impermissible in federal prosecutions”) (citing United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975)). The privilege against self-incrimination, however, is subject to waiver “provided the waiver is made voluntarily, knowingly and intelligently.” Colorado v. Spring, 479 U.S. 564, 572, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987) (quoting Miranda, 384 U.S. at 444, 86 S.Ct. 1602); United States v. Abrego, 141 F.3d 142, 171 (5th Cir.1998). Here, Pando does not dispute that he voluntarily waived his Miranda rights with full knowledge that anything he said could be used as evidence against him. Nor does he dispute that during his interrogation he answered questions about his post-arrest, pre-and post-Miranda silence. In fact, the officers specifically asked Pando why he never questioned the fact that he was being detained and interviewed or if there was a problem with the table, to which Pando responded, the “table must contain drugs.” We conclude that by" }, { "docid": "23239658", "title": "", "text": "that’s really his story then how do you explain his silence once Agent Briggs arrested him?”). Defense counsel objected to the prosecution’s use of post-arrest silence in closing argument and requested a mistrial. Id. at 95-96. The trial court sustained the objection and admonished the jury to disregard the “the comments of counsel in regard to the Defendant’s silence or non-silence pri- or to his beginning to make the voluntary statement to Agent Goss,” but overruled counsel’s request for a mistrial. Id. at 96-97. In his direct appeal to the OCCA, Mr. Bland argued that the trial court erred in failing to grant a mistrial. The OCCA denied relief, finding that the error was cured by the trial court’s admonition to the jury. Bland, 4 P.3d at 730. The district court found that the OCCA’s decision was not unreasonable due to the substantial evidence indicating guilt and the trial court's order sustaining the objection and issuing a curative instruction. The State contends here, as it did in the district court, that the comments on post-arrest silence were not only harmless but also that they did not violate Mr. Bland’s right to due process as defined by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Witnesses who testify in court, including criminal defendants, may generally “be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted.” Jenkins v. Anderson, 447 U.S. 231, 239, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980) (permitting prosecutorial comment on pre-ar-rest silence). One exception to this rule is “where the government ha[s] induced silence by implicitly assuring the defendant that his silence would not be used against him,” such as after the issuance of Miranda warnings. Fletcher v. Weir, 455 U.S. 603, 606, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982) (per curiam); see also Doyle v. Ohio, 426 U.S. 610, 618, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) (holding that commenting on a defendant’s post-arrest, post-Miranda silence violates due process). However, “[i]n the absence of the sort of affirmative assurances embodied in" }, { "docid": "18864768", "title": "", "text": "at the cashier’s cage. As to the government’s argument based upon appellant’s conduct following the cashier’s statement, the Magistrate concluded this was relevant and considered it “significant when Mr. Robinson was confronted with the fact he did have counterfeit bills, he said nothing, made no objection and [this occurred] despite the fact there were several other counterfeit bills still in his possession at that time, for all practical purposes duplicates and any person would have known [it] looking at those bills, they were exactly like the ones that were passed.” T. 47. Finally, the Magistrate stated that consideration of this argument did not violate appellant’s rights under the Fifth Amendment. Appellant argues in this Court that the government presented legally insufficient proof to establish that he knew the bills were counterfeit. Citing United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975), and Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), he asserts that his Fifth Amendment “right to remain silent” was violated by the Magistrate’s consideration of arguments from his reaction to the cashier’s statement. Hale and Doyle, however, are distinguishable because the defendants in those cases had been taken into custody and given warnings required under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Supreme Court held in those cases that the prosecution may not make use of a defendant’s silence after receiving such warnings. As Judge Friendly has recently explained: “Two slightly different considerations have been adduced to support this prohibition. One is that silence following Miranda warnings is ‘insolubly ambiguous’ since it may be nothing more than an exercise of the rights described by the warnings. [Doyle v. Ohio, supra, 426 U.S.] at 617 [96 S.Ct. at 2244] .... The other is that the warnings convey an implicit assurance to a suspect that his silence will not be used against him. Id. at 618 [96 S.Ct. at 2245] . ...” United States v. Caro, 637 F.2d 869, 875 (2d Cir. 1981). In the instant appeal both these rationales are inapplicable because" }, { "docid": "4460391", "title": "", "text": "Supreme Court held the privilege against self-incrimination applicable to state prosecutions. After Malloy v. Hogan, it was clear that since the defendant in a criminal case had a constitutional right to remain silent, his exercise of that right could not be used against him substantively as an affirmation by silence. The privilege against self-incrimination received further support from the Supreme Court’s decisions in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which dealt with the circumstances in which actual statements, rather than silence, would be excluded. In Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), the Court held that although an actual statement obtained in violation of Miranda could not be used as substantive evidence against the defendant, it could be used for impeachment purposes as a prior inconsistent statement if the defendant testified in a manner inconsistent with that prior statement. After the decision in Harris v. New York, the courts of appeals divided on the question whether, despite the rule of Malloy v. Hogan, an affirmation by silence could be used for impeachment purposes when the defendant took the stand at his trial. The Supreme Court resolved this conflict in United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975), and Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 48 L.Ed.2d 91 (1976). In Hale the Court held that the defendant’s post-arrest silence could not be used even for impeachment purposes. The Court reasoned, first, that the defendant’s silence was not sufficiently probative of an inconsistency with his in-court testimony to warrant admission of the silence as impeachment evidence. 422 U.S. at 177, 95 S.Ct. 2133. In addition, the Court believed that admitting into evidence the defendant’s post-arrest silence would be highly prejudicial. Id. at 180, 95 S.Ct. 2133. The decision in Hale applied only to federal prosecutions. However, in Doyle the Court held that the rule excluding even the impeaching use of such silence was constitutionally required" }, { "docid": "4433128", "title": "", "text": "In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the Court, in a post-arrest silence case, held the government cannot, consistent with due process, bring up at trial a defendant’s silence after receiving Miranda warnings, even for impeachment purposes. See also United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975) (same result reached based on Supreme Court’s supervisory power over federal courts). In Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), however, the Court held that the government can use pre-arrest silence to impeach a defendant. See also Lebowitz v. Wainwright, 670 F.2d 974 (11th Cir.1982). The present ease, involving prearrest silence, differs in two critical respects from Doyle and Jenkins and the other cases concerning the use of a defendant’s silence. First, the government introduced evidence of defendant’s silence in its direct case in a trial in which the defendant never testified. In virtually all the major prior silence cases, the prosecution raised the issue on cross examination or rebuttal in an effort to impeach the defendant-witness. The logical theory of admissibility in this context is that the silence amounts to a prior inconsistent statement. Second, the silence here did not occur in response to a governmental inquiry as is usually the fact in cases dealing with the point. A private insurance company asked Nabors to cooperate in its own investigation of the damage to the plane. The insurer sent its inquiry one and one-half years before the indictment of Nabors. No Miranda warnings were given, and none had to be. Under one view, this latter distinction might be dispositive of the fifth amendment argument in this case. In a concurring opinion in Jenkins, Justice Stevens, joined by retired. Justice Stewart, wrote: The fact that a citizen has a constitutional right to remain silent when he is questioned has no bearing on the probative significance of his silence before he has any contact with the police .. . When a citizen is under no official compulsion whatever, either to speak or to remain silent," }, { "docid": "13322763", "title": "", "text": "affirmation and the constitutional privilege against self-incrimination. In Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), the Supreme Court held that although an actual statement obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), could not be used as substantive evidence against the defendant, it could be used for impeachment purposes as a prior inconsistent statement if the defendant testified in a manner inconsistent with that prior statement. After the decision in Harris, the courts of appeals divided on the question whether an affirmation by silence could be used for impeachment purposes when the defendant took the stand at his trial. The Supreme Court resolved this conflict in United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975), and Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). In Hale the Court held that the defendant’s post-arrest silence could not be used even for impeachment purposes. The Court reasoned, first, that the defendant’s silence was not sufficiently probative of an inconsistency with his in- court testimony to warrant admission of the silence as impeachment evidence. 422 U.S. at 177, 95 S.Ct. 2133. In addition, the Court believed that admitting into evidence the defendant’s post-arrest silence would be highly prejudicial. Id. at 180, 95 S.Ct. 2133. The decision in Hale applied only to federal prosecutions; Doyle extended the rule to state trials. If, as Hale and Doyle hold, a defendant’s silence cannot be treated as a prior inconsistent statement for impeachment purposes, a fortiori it cannot be used substantively as an admission tending to prove the commission of the offense. The district court in the present case noted that Supreme Court cases which came down after Boyer’s state trial could have no bearing on this habeas corpus proceeding. 436 F.Supp. at 887 n.4, citing Doyle and Hale. Although we believe that a conscientious attorney would have been aware of the gestating law in this area, we agree that Moore’s prescription of “knowledge which normally prevails at the time and" }, { "docid": "22592011", "title": "", "text": "Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). In Doyle, the petitioner took the stand at his trial for selling marijuana and explained, for the first time, that he had been framed. See id. at 612-13, 96 S.Ct. 2240. For impeachment purposes, the prosecutor asked the petitioner why he had not told this story immediately after his arrest. See id. at 613, 96 S.Ct. 2240. The petitioner was convicted, and he appealed on the ground that cross-examination regarding his post-arrest silence was error. See id. at 615, 96 S.Ct. 2240. The Supreme Court held “that the use for impeachment purposes of petitioners’ silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.” Id. at 619, 96 S.Ct. 2240. The theory underlying Doyle is that while Miranda warnings contain no express assurance that silence will carry no penalty, “such assurance is implicit to any person who receives the warnings.” Id. at 618, 96 S.Ct. 2240. On this reasoning, the Court concluded that it would be fundamentally unfair first to induce a defendant to remain silent through Miranda warnings and then to penalize the defendant who relies on those warnings by allowing the defendant’s silence to be used to impeach an exculpatory explanation offered at trial. See id. Later cases have restricted Doyle and have reaffirmed that the “fundamental unfairness” identified by the Court derives from the implicit assurances of the Miranda warnings. In Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), the Court held that due process is not violated by the impeachment use of prearrest, pre-Miranda warnings silence, see id. at 238-39, 100 S.Ct. 2124. In Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982), the Court held that impeachment use of post-arrest, pre-Miranda warnings silence does not offend due process, see id. at 607, 102 S.Ct. 1309. The Weir Court explained that Doyle was a case in which the government had actually induced silence with Miranda warnings, and it noted that any broadening of Doyle to a" }, { "docid": "8644722", "title": "", "text": "that since his retirement he travelled often because he had much idle .time. He claimed to live on $40,000 that he had saved, which Gesior had deposited in a Las Vegas bank account under her own name and from which she withdrew money as she and appellant needed it. Appellant did not know the name of the bank. II. Appellant argues that the government deprived him of due process of law by commenting in cross-examination and closing argument on appellant’s failure to tell his version of events to the FBI after his arrest. Upon being subjected to interrogation in police custody, a suspect must be informed of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which of course include the right to remain silent. Miranda teaches that the prosecution may not use at trial “the fact that [the defendant] stood mute or claimed his privilege in the face of accusation.” Id. at 468 n. 37, 86 S.Ct. at 1624 n. 37. The Supreme Court has held further that the prosecution may not use a defend ant’s post-arrest silence to impeach an exculpatory story told at trial. See Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); see also United States ex rel. Allen v. Franzen, 659 F.2d 745, 747 (7th Cir.1981), cert. denied, 456 U.S. 928, 102 S.Ct. 1975, 72 L.Ed.2d 444 (1982). The Court noted that implicit in the Miranda warnings is an assurance that silence carries no penalty, and, due to the warnings, every post-arrest silence is insolubly ambiguous. Doyle, 426 U.S. at 617, 96 S.Ct. at 2244; see also United States v. Hale, 422 U.S. 171, 177, 95 S.Ct. 2133, 2136-37, 45 L.Ed.2d 99 (1975). Here, the government’s remarks appear to directly conflict with the rule of Doyle by implying that appellant’s exculpatory story was false because he did not tell it to the FBI after his arrest. On cross-examination, the government asked appellant: Q: When you were arrested, the Chicago Police Department took you and Ms. Ges-ior down to the police station, is that" }, { "docid": "16004822", "title": "", "text": "Desmond v. United States, 345 F.2d 225, 226-27 (1st Cir.1965). The Court held in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), that a statement made by defendant to police that was inadmissible in the prosecution’s case in chief because of lack of procedural safeguards required under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), could be used on cross-examination to impeach defendant’s credibility. In the course of its opinion, the Court stated: “Every criminal defendant is privileged to testify in his own defense, or refuse to do so. But that privilege cannot be construed to include the right to commit perjury.” Id. 401 U.S. at 225, 91 S.Ct. at 645. The next case is one which the New Hampshire Supreme Court referred to in its opinion, Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). Doyle proscribed the use of defendant’s post-Miranda silence to impeach on cross-examination his exculpatory story told for the first time at trial. The Court concluded that “use of the defendant’s post-arrest silence in this manner violates due process....” Id. at 611, 96 S.Ct. at 2241. Doyle, strictly speaking, does not directly involve the fifth amendment privilege against self-incrimination. We include it because it has some bearing on the issue before us and because of the New Hampshire court’s reference to it, and its partial quote from the sentence: “Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested.” Id. at 617, 96 S.Ct. at 2244 (emphasis added). We have already discussed Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, and only repeat the holding: “We hold that impeachment by use of prearrest silence does not violate the Fourteenth Amendment.” Id. at 240, 100 S.Ct. at 2126 (emphasis added). Even if the word “silence” is construed to mean a spoken invocation of the privilege against self-incrimination, which was not at all involved in the case, Jenkins speaks only to the use of prearrest silence for impeachment. We have found no" }, { "docid": "8844945", "title": "", "text": "in the trial. The evidence showed conclusively that he had “rented” the car and been in continuous possession of it. Whatever the facts about its “stolenness” might be, it was undisputed that Edwards knew them; he was their architect. There was no occasion to draw inferences from Edwards’ mere possession of “stolen” property. Once the factfinder concluded the car was stolen its inquiry,, on these facts, was at an end. Edwards was the thief. Given these circumstances and the content of the remarks themselves, then, we think it fairly clear that the prosecutor meant his comments as remarks on defendant’s silence upon arrest and perhaps also on his failure to take the stand. (“Not to this good day”). At all events, it seems the jury would “naturally and necessarily” so interpret them. With limited exceptions not applicable here, it is the rule that a prosecutor may not comment on a defendant’s silence at arrest. See Miranda v. Arizona, 384 U.S. 436, 468 n. 37, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); United States v. Henderson, 565 F.2d 900 (5th Cir. 1978). Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), prohibits the use of such evidence even to impeach a defendant’s testimony at trial. Such comments may constitute plain error, United States v. Henderson, supra at 905, and a judge’s cautionary instruction will not suffice to cure the error. United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975); United States v. Henderson, supra. Thus, defendant’s failure to object on these grounds does not preclude review. Moreover, most of these observations apply equally to comments on the defendant’s failure to take the stand, and defendant raised a timely objection on this ground. Even though it appears that the defendant’s constitutional rights were violated by the prosecutor’s comments on his silence at arrest and his failure to testify, such violations need not lead to reversal if harmless beyond a reasonable doubt. Chapman v. United States, 547 F.2d 1240 (5th Cir.), cert. denied, 431 U.S. 908, 97 S.Ct. 1705, 52 L.Ed.2d 393 (1977). The" }, { "docid": "1515398", "title": "", "text": "it would be to her advantage to tell us so that we would know the story and possibly go further with the investigation. Q What was her response? A She refused. Defense Counsel: Your Honor, again I am going to move to strike. If I may approach the bench with counsel. Prosecutor: Special Agent Baumwald, after the Defendant was advised of her rights, did she make any further statements to you? Agent Baumwald: She just told me that she was not aware that there was cocaine inside the bag (Tr 45). During this fourth statement, Johnson’s counsel objected and moved for a mistrial. The Court denied the motion, but instructed the jury to disregard the last mentioned testimony. The parties ask us to determine whether the admission of this testimony infringed impermissibly on defendant’s right to remain silent under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), as applied by Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), and United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975). We hold that the testimony did infringe on those rights and that the admission of this evidence constituted prejudicial error. Doyle elevated to constitutional status the rule enunciated in Hale, that the prosecution may not impeach a defendant’s testimony with evidence of the defendant’s silence after having received Miranda warnings. This rule includes a ban on the use of defendant’s expressions of intent to remain silent. See United States v. Stevens, 538 F.2d 1203, 1205 (5 Cir. 1976). Where a defendant’s post-Miranda utterance is an ambiguous expression of his desire to remain silent, that utterance should receive the same treatment as naked silence. Stevens, supra. Cf. United States v. Joyner, 539 F.2d 1162, 1165-66 (8 Cir. 1976). These rules seem fairly well defined. Our case, however, does not fit directly into any of the situations on which courts have previously rendered decision. Here, the defendant made some expressions of an intent to remain silent until after consulting an attorney. She also stated, in conjunction with that desire" }, { "docid": "1577566", "title": "", "text": "claim, we hold that Gil’s entrapment defense did not reach such a level of antagonism with the testimony offered by Rióla and Contreras so as to require severance. While Rióla testified that Gil had previously indicated an interest in narcotics trafficking, this testimony was brought out by Gil’s counsel when he cross-examined Rióla. Gil’s counsel thereby invited any possible error. Also, testimony by Gil’s own witness, O’Reilly, substantially impaired Gil’s entrapment defense. In view of O’Reilly’s damaging testimony, we have determined that Gil did not suffer prejudice from Rio-la’s testimony that would compel severance. We therefore reject the defendants’ severance claims. II We also reject the three remaining claims: that the prosecutor, in cross-examination and closing argument, impermissibly commented on Contreras’s post-arrest silence, that the district court improperly instructed the jury on entrapment, and that the evidence was insufficient to support Riola’s conviction. Of these, only the post-arrest silence issue deserves any discussion. Contreras claims that the prosecutor used, for impeachment purposes, her post-arrest silence in the following exchange with her: Q: Until today, have you ever told any agent of the Drug Enforcement Administration this story about Mr. Menendez, the drug dealer? A. No, sir. Q. Until today, did you ever tell any law enforcement officer about Mr. Menendez, the drug dealer? A. No, sir. Record, vol. 2, at 328. Contreras also claims that the prosecutor, in his closing argument, commented on her post-arrest silence. Neither the cross-examination questions nor the closing argument violated Contreras’s rights guaranteed by Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). The questions, considered in context, were directed to Contreras’s failure to notify the authorities before her arrest. Impeachment through prearrest silence does not violate defendant’s constitutional rights. Jenkins v. Anderson, 447 U.S. 231, 240, 100 S.Ct. 2124, 2130, 65 L.Ed.2d 86 (1980). As for the closing argument, the prosecutor did not even refer to Contreras’s silence, but rather to Menendez’s failure to tell Contreras that he had left cocaine in the suitcase. Record, vol. 3, at 495. In any event, Contreras has not satisfied the governing standard, that" }, { "docid": "4433127", "title": "", "text": "of the fifth amendment to the Constitution. Emphasizing that he did not intend to testify in his own behalf, Nabors reasoned that the evidence improperly enabled the prosecution to comment on his silence and allowed the jury to infer guilt therefrom. We decide the constitutional issue on the assumption that the evidence was relevant. Nabors objected and appealed purely on fifth amendment grounds. We generally do not review evidentiary rulings except on the grounds asserted in the contemporaneous objection. See United States v. Arteaga-Limones, 529 F.2d 1183, 1198-99 (5th Cir.), cert. denied, 429 U.S. 920, 97 S.Ct. 315, 50 L.Ed.2d 286 (1976); United States v. Fendley, 522 F.2d 181, 185-86 (5th Cir.1975). In any event, questions of relevance fall within the broad discretion of the trial court. United States v. Linetsky, 533 F.2d 192, 204 (5th Cir.1976); United States v. Dobbs, 506 F.2d 445, 447 (5th Cir.1975). The constitutionality of admitting the evidence is difficult to decide. The leading Supreme Court cases on the prosecution’s use of a defendant’s silence are not directly on point. In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the Court, in a post-arrest silence case, held the government cannot, consistent with due process, bring up at trial a defendant’s silence after receiving Miranda warnings, even for impeachment purposes. See also United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975) (same result reached based on Supreme Court’s supervisory power over federal courts). In Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), however, the Court held that the government can use pre-arrest silence to impeach a defendant. See also Lebowitz v. Wainwright, 670 F.2d 974 (11th Cir.1982). The present ease, involving prearrest silence, differs in two critical respects from Doyle and Jenkins and the other cases concerning the use of a defendant’s silence. First, the government introduced evidence of defendant’s silence in its direct case in a trial in which the defendant never testified. In virtually all the major prior silence cases, the prosecution raised the issue on cross examination or" }, { "docid": "1577567", "title": "", "text": "you ever told any agent of the Drug Enforcement Administration this story about Mr. Menendez, the drug dealer? A. No, sir. Q. Until today, did you ever tell any law enforcement officer about Mr. Menendez, the drug dealer? A. No, sir. Record, vol. 2, at 328. Contreras also claims that the prosecutor, in his closing argument, commented on her post-arrest silence. Neither the cross-examination questions nor the closing argument violated Contreras’s rights guaranteed by Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). The questions, considered in context, were directed to Contreras’s failure to notify the authorities before her arrest. Impeachment through prearrest silence does not violate defendant’s constitutional rights. Jenkins v. Anderson, 447 U.S. 231, 240, 100 S.Ct. 2124, 2130, 65 L.Ed.2d 86 (1980). As for the closing argument, the prosecutor did not even refer to Contreras’s silence, but rather to Menendez’s failure to tell Contreras that he had left cocaine in the suitcase. Record, vol. 3, at 495. In any event, Contreras has not satisfied the governing standard, that a prosecutor impermissibly comments on a defendant’s silence either when the prosecutor manifestly intended to comment upon the defendant’s failure to testify or when the jury would naturally and necessarily take the comment to refer to defendant’s failure to testify. E.g., United States v. Hartley, 678 F.2d 961, 983 (11th Cir.1982); United States v. Jones, 648 F.2d 215, 218 (5th Cir.1981); United States v. Corral-Martinez, 592 F.2d 263, 269 (5th Cir.1979); Samuels v. United States, 398 F.2d 964, 968 (5th Cir.1968), cert. denied, 393 U.S. 1021, 89 S.Ct. 630, 21 L.Ed.2d 566 (1969). AFFIRMED. . Rule 14 states that “[i]f it appears that a defendant ... is prejudiced by a joinder ... of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires.” . At this point, Contreras had several options, but each appeared undesirable to her. First, Contreras could have brought the suitcase to New York. However, she" }, { "docid": "7621930", "title": "", "text": "436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Court stated that “it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.” Id. at 468 n. 37, 86 S.Ct. at 1625 n. 371; see United States v. Hale, 422 U.S. 171, 182-83, 95 S.Ct. 2133, 2139-40, 45 L.Ed.2d 99 (1975) (Douglas, J., and White, J., concurring). In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the Court extended this principle of Miranda to the cross examination context, holding that a defendant’s post-arrest silence could not be used to impeach his exculpatory story without violating due process. Although Stokes raised the issue of improper prosecutorial comment on direct appeal, the Court of Criminal Appeals did not discuss it in the opinion affirming his conviction. The Texas courts denied Stokes’ petition for habeas relief without opinion. The district court referred the issue of improper comment on Stokes’ post-arrest silence to the magistrate for a hearing and findings. The magistrate made alternative findings, which the district court adopted. First, because of defense counsel’s failure to object, review of the claim was barred by Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Second, the violation was harmless beyond a reasonable doubt. See, e.g., United States v. Shaw, 701 F.2d 367 (5th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 1419, 79 L.Ed.2d 744 (1984); Chapman v. United States, 547 F.2d 1240 (5th Cir.), cert. denied, 431 U.S. 908, 97 S.Ct. 1705, 52 L.Ed.2d 393 (1977). If defense counsel had not explored with the arresting officer possible reasons for Stokes’ post-arrest silence, we do not doubt that the prosecutor would not have emphasized the silence as extensively as he did on redirect and during final arguments. Nevertheless, the prosecutor in his case-in-chief initiated the comment on Stokes’ silence by asking if he had said anything else after he was arrested and advised" }, { "docid": "22939291", "title": "", "text": "you ask them if each of them had a suitcase, you know, one suitcase went to a person? A: Yes. Q: And what kind of responses did you get? A: \"This is mine. This is mine and this is mine,” each one. . See United States v. Silien, 825 F.2d 320, 323 (11th Cir.1987). . 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . See Wainwright v. Greenfield, 474 U.S. 284, 290, 106 S.Ct. 634, 637, 88 L.Ed.2d 623 (1986) (citation omitted). . Doyle v. Ohio, 426 U.S. 610, 617, 96 S.Ct. 2240, 2244, 49 L.Ed.2d 91 (1976). . See Greenfield, 474 U.S. at 290-91, 106 S.Ct. at 637-38; Doyle, 426 U.S. at 618-19, 96 S.Ct. at 2245; cf. United States v. Hale, 422 U.S. 171, 180, 95 S.Ct. 2133, 2138, 45 L.Ed.2d 99 (1975). . During Schor’s testimony about this third instance, he stated initially about Vila’s reaction to the search of the contents of her luggage that \"[n]othing verbal was said.” This answer was struck by the trial court as an obvious comment on Vila’s silence after having been given Miranda warnings. . See Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980). . See Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982). . The record indicates that Vila was not arrested or given her Miranda warnings until after Schor first discovered the cocaine in Stroud’s suitcase. The vital distinction for our purposes, however, is not when Vila was arrested or technically in custody, but when she was given her Miranda warnings and thereby given the implicit assurance that her silence would not be used against her. See id. at 606-07, 102 S.Ct. at 1311-12. Because she had not yet received such affirmative assurances when Stroud's suitcase was being searched, the government could unquestionably comment on her silence during that phase of the encounter. . See United States v. Elkins, 11A F.2d 530, 537 (1st Cir.1985) (stating that a comment on silence \"occurs not only when the objectionable comments explicitly refer to a defendant's failure to answer" }, { "docid": "7579514", "title": "", "text": "“improper questioning of the defendant was mitigated by the fact that it was clear that he had not requested the attorney himself, — it was the family lawyer sent by his sister and he merely did what the attorney told him to do.” Id. at 724. The district court in 1981 agreed with the state court that the questioning was error. It relied on Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), which had been decided long after the trial in 1971 and a year after the state court’s opinion. Doyle holds that a prosecutor may not comment on a defendant’s silence, at the time of arrest, after the defendant has received the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The district judge thought Doyle equally applicable to this case, even though the silence in question preceded arrest and warnings. The judge also thought the questions impaired Dean’s right to counsel under the sixth amendment, and he rejected the state court’s con-, elusion that any error was harmless. In 1984, however, the district judge took it all back. In Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), which the district court had overlooked in 1981, the Supreme Court held that a prosecutor may impeach a defendant with prior silence, if the silence preceded his arrest. Then in Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982), the Court held that impeachment from silence after arrest is permissible, provided the silence precedes the Miranda warnings. Fletcher treats Doyle as a prohibition of trickery by the government — the state may not first implicitly warn the defendant that silence will not be used against him and then accost him at trial once he remains silent. Here, the district court observed, the state had elicited Dean’s silence before Miranda warnings, which under Fletcher it may do. As for the comment on the exercise of the sixth amendment right to counsel, the district court cited Sulie v. Duckworth, 689 F.2d 128" }, { "docid": "5800399", "title": "", "text": "A search warrant was obtained and the defendant’s vehicle was searched. Gray sealant, orange paint and aluminum scrapings were found in the trunk of the car that matched samples taken from the boat. During the serving of the search warrant and the arrest of the defendant, a piece of rope was located in the yard of the defendant. The agent seized the rope because it appeared to match a short piece of rope located in the front of the aluminum boat. Subsequent examination showed that the rope in the yard had been cut from the rope on the boat. Defendant was indicted on two counts of violating the Hobbs Act, tried, convicted on one count of violating the Hobbs Act, and sentenced to ten years imprisonment. At trial, he took the stand and offered an exculpatory story. Defendant also testified that he had spoken with agent Boe on four or five occasions. Boe was called on rebuttal and when asked whether Dixon had ever told him the story which Dixon told on the stand, Boe replied, “No, sir, he declined to discuss the matter.” Defendant immediately moved for a mistrial. His motion was denied. Appellant urges that this denial was improper as Boe’s statement constituted an impermissible reference to an accused’s exercise of his right to remain silent. THE ISSUES AND THE LAW It is now well settled that prosecutorial comment on silence for substantive or impeachment value is constitutionally prohibited. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975); Miranda v. Arizona, 384 U.S. 436, 468 n. 37, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Although the Supreme Court has not ruled on this point, the Fifth Circuit has decided that the harmless error doctrine is applicable to the constitutional violation of comment on silence for impeachment. United States v. Meneses-Davila, 580 F.2d 888, 890 (5th Cir. 1978); Chapman v. United States, 547 F.2d 1240, 1248 (5th Cir.), cert. denied, 431 U.S. 908, 97 S.Ct. 1705, 52 L.Ed.2d 393 (1977). We" }, { "docid": "23239659", "title": "", "text": "silence were not only harmless but also that they did not violate Mr. Bland’s right to due process as defined by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Witnesses who testify in court, including criminal defendants, may generally “be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted.” Jenkins v. Anderson, 447 U.S. 231, 239, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980) (permitting prosecutorial comment on pre-ar-rest silence). One exception to this rule is “where the government ha[s] induced silence by implicitly assuring the defendant that his silence would not be used against him,” such as after the issuance of Miranda warnings. Fletcher v. Weir, 455 U.S. 603, 606, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982) (per curiam); see also Doyle v. Ohio, 426 U.S. 610, 618, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) (holding that commenting on a defendant’s post-arrest, post-Miranda silence violates due process). However, “[i]n the absence of the sort of affirmative assurances embodied in the Miranda warnings,” the Supreme Court has held that it does not “violate[] due process of law for a State to permit cross-examination as to postarrest silence when a defendant chooses to take the stand.” Fletcher, 455 U.S. at 607, 102 S.Ct. 1309. Most comments made by the prosecution at Mr. Bland’s trial are analogous to those made in Fletcher. In Fletcher, the defendant testified on his own behalf that he did stab the victim, but claimed (for the first time) that he acted in self-defense and that the stabbing was accidental. Id. at 603-04, 102 S.Ct. 1309. On cross-examination, the prosecutor asked why he had failed to assert his exculpatory explanation upon arrest. Id. at 607, 102 S.Ct. 1309. The Court found no due process error in the prosecutor’s questions because the prosecution used only post-arrest, pre-Miranda silence. Here, the prosecution repeatedly referred to Mr. Bland’s pre-arrest and post-arrest, pre-Miranda silence by asking Mr. Bland why he did not tell his mother, Trooper Fisher, or arresting officer Agent Briggs about his confrontation with Mr." }, { "docid": "18864769", "title": "", "text": "consideration of arguments from his reaction to the cashier’s statement. Hale and Doyle, however, are distinguishable because the defendants in those cases had been taken into custody and given warnings required under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Supreme Court held in those cases that the prosecution may not make use of a defendant’s silence after receiving such warnings. As Judge Friendly has recently explained: “Two slightly different considerations have been adduced to support this prohibition. One is that silence following Miranda warnings is ‘insolubly ambiguous’ since it may be nothing more than an exercise of the rights described by the warnings. [Doyle v. Ohio, supra, 426 U.S.] at 617 [96 S.Ct. at 2244] .... The other is that the warnings convey an implicit assurance to a suspect that his silence will not be used against him. Id. at 618 [96 S.Ct. at 2245] . ...” United States v. Caro, 637 F.2d 869, 875 (2d Cir. 1981). In the instant appeal both these rationales are inapplicable because appellant was not in custody at the time in question, a finding of the Magistrate we cannot term erroneous, and therefore was not entitled to Miranda warnings. See United States v. Vega, 589 F.2d 1147, 1151 n.1 (2d Cir. 1978). Last term, in Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), the Supreme Court held that where no Miranda warnings are given and it is clear that none are required under the circumstances, neither of the considerations addressed in Hale and Doyle prohibited the otherwise proper impeachment of a defendant’s exculpatory testimony by the use of his silence prior to arrest. Specifically, the Court in Jenkins held that the defendant’s testimony that he had killed another in self-defense could be impeached by evidence that he did not report the killing to the police until two weeks after the incident. The opinion of the majority in Jenkins relied on the defendant’s voluntary decision to testify, which activated counterbalancing considerations of the integrity of the truth-finding process, requiring cross-examination and impeachment, even" } ]

[ { "docid": "7443301", "title": "", "text": "valorem, which is the same rate as in the Tariff Act of 1922. .As Congress did not make any change in the rates of duty on manufactures of gelatin in the 1922 and 1930 acts, and as no changes in the rates were made in these acts for spangles, it would appear that Congress did not intend to have “spangles” dutiable under the provision for manufactures of gelatin. We are further of opinion that Congress, in providing in paragraph 1503 of the present act for “Spangles and beads * * * not specially provided for,” and then specially providing in the same paragraph for various other kinds of beads, intended by the limiting clause “not specially provided for” in the present paragraph 1503 to obviate any conflict with respect to the classification of those beads which were otherwise specially provided for at higher rates of duty in the same paragraph. The effect and purpose, generally speaking, of a “not specially provided for” provision was considered in the case of United States v. Snow’s United States Sample Express Co., 6 Ct. Cust. Appls. 120, T. D. 35388, wherein our appellate court stated: The presence of this term in a given paragraph advises the customs authorities that merchandise otherwise within the paragraph may be elsewhere classified, because elsewhere provided for. If the provision found elsewhere is eo nomine, and the one in which the above term is found is general, the eo nomine provision will control, because the more specific, and an eo nomine provision is not per se shorn of its controlling force because it is coupled with the expression “not otherwise specially provided for.” Movius v. Arthur (95 U. S., 144); Arthur v. Lahey (96 U. S., 112); Chew Hing Lung v. Wise (176 U. S., 156); Krauss v. United States (2 Ct. Cust. Appls., 17; T. D. 31574). Government counsel, however, misapprehends the law in its claim that because the term “not otherwise specially provided for” is found in paragraph 256 the merchandise here can not be classified thereunder if any other applicable provision therefor can be found. [Italics" } ]

[ { "docid": "7443306", "title": "", "text": "court stated: These articles are in a general way of the same character as the class of materials considered under paragraph 408, and, as the designation is more specific than the general catch-all provision in paragraph 450 * * * for manufactures of gelatin, the decision of the Board of General Appraisers should be affirmed. In International Forwarding Company v. United States, 13 Treas. Dec. 497, T. D. 28103, the merchandise in question consisted of certain beaded bags composed of a cotton fabric, cut and fashioned into shape, having a metal frame with a chain attached to complete the bag. The exterior surface of the fabric was covered with glass beads. The court held the articles were dutiable, as assessed, under paragraph 408 of the Tariff Act of 1897 as articles composed wholly or in chief value of beads, rather than under paragraph 193 of the same act for “Articles or wares not specially provided for * * * composed wholly or in part of iron * * * or other metal.” In so holding, the court stated: It is an elementary principle in the construction of the tariff that a provision for a designated article is more specific than that for a material. The competition in the present case is between the eo nomine designation for “spangles” (paragraph 1503) and a general provision for manufactures of gelatin (paragraph 41). The former is the more specific. The plaintiff in its brief directs our attention to United States v. Downing, 1 Ct. Cust. Appls. 337, T. D. 31434, wherein the court held that a provision for “manufactures of” is a specific designation for tariff construction. It then contends that it follows that spangles, being specifically designated as manufactures of gelatin, would not be “not specially provided for,” so that gelatin spangles would not be dutiable under paragraph 1503 as spangles, not specially provided for. However, “spangles” are not specifically designated as “manufactures of gelatin” and the clause “not specially provided for” contained in paragraph 1503 of the present act does not, therefore, exclude the merchandise in question from the eo nomine" }, { "docid": "22061905", "title": "", "text": "to indicate the average number of words transmitted during a given time. The merchandise had been classified as a “mechanism, device, or instrument intended or suitable for * * * indicating * * * the speed of arbors * * * or similar uses” within the provisions of paragraph 368 (a), supra, and was held to be properly subject to duty as a part of “electrical telegraph, * * * radio, * * * devices” as provided in paragraph 353 of the act of 1930. In arriving at its conclusion therein, the court stated — ■ * * * Assuming, without deciding, that the devices in question fall within the descriptive terms of said paragraph 368, nevertheless the wireless telegraph transmitters to which they are attached are eo nomine provided for in paragraph 353, either as “electrical telegraph” or as “radio” apparatus. We think the transmitting apparatus is properly defined by either term. The device in question is a part of an electrical telegraph apparatus, ór a part of a radio apparatus, and we think that a “part” of such apparatus provided for in paragraph 353 is a more specific designation than- the general descriptive language of a “mechanism, device, or instrument intended or suitable for * * * indicating * * * the speed of arbors, * * * or similar uses”, found in paragraph 368. It is true, as pointed out by the Government, that paragraph 353 contains the clause “not specially provided for”, while paragraph 368 does not. However, it is well settled by this court that if an article is more specifically described in a paragraph containing the “not specially provided for” clause than in a paragraph not containing such clause, the presence of the clause in the'one paragraph will not have the effect of excluding the article from the paragraph where it is more specifically provided for. Knauth, Nachod & Kuhne v. United States, 4 Ct. Cust. Appls. 58, T. D. 33307; Loewenthal & Co. v. United States, 6 Ct. Cust. Appls. 209, T. D. 35464; Comstock & Theakston v. United States, 12 Ct. Cust." }, { "docid": "22784926", "title": "", "text": "a sufficient number of cases will show that this so-called doctrine is subject to “exceptions” whenever it comes into conflict either with a clearly expressed legislative intent or a competing provision which is obviously more specific than the “use” provision, as applied to the merchandise at bar. Actually, the “doctrine” appears to be a convenient rule of thumb for resolving issues where the competing provisions are otherwise in balance. It grew out of cases such as Fink v. United States, 170 U.S. 584, where “medicinal preparations,” a use designation, was in fact more specific than “chemical compounds and salts.” After discussing that case, our predecessor court said, in Drakenfeld & Co. v. United States, 9 Ct. Cust. Appls. 124, 126, T.D. 37979, that the doctrine could be precisely stated as follows: * * * this designation according to a specific use should now prevail over a competing description of a general character, without special limitations as to use or other qualification. It took that quotation, adding the emphasis shown, from its own opinion in a prior Drakenfeld case, 2 Ct. Cust. Appls. 512, 515, T.D. 32248. In both of those cases pigments or colors were involved and the question was whether a tariff provision for such materials was more specific than, and should prevail over, a general provision for “chemical compound or salt” or “salts.” The holdings in these and other like cases that the use provisions were the more specific were not holdings that use provisions are always more specific. Clearly they are not, as shown for instance in M. Pressner & Co. v. United States, 42 CCPA 48, C.A.D. 568. That case, incidentally, involved paragraph 339 and we note, in passing, the following comment in the opinion which has a bearing on the present issue: If Congress had intended paragraph 339, supra, to apply to all household utensils, it would not have provided therein only for “household utensils not specially provided fox’.” What was referred to in the next case cited as “the doctrine of favoring classification by use” (our emphasis), was not applied in United States v." }, { "docid": "17049615", "title": "", "text": "The court held that the collector had properly classified the merchandise, stating that— The tariff act distinguishes between a mere advancement and a manufacture. An importation can not be assumed to be a manufacture merely because shown to be advanced. [See syllabus.] The Ishimitsu case, supra, cannot be used as an authority for holding-boron carbide to be excluded from its eo nomine provision inasmuch as-the appellate court did not have before it for consideration an unqualified provision therefor, or a commodity composed solely of seaweeds. In Downing v. United States, 2 Ct. Cust. Appls. 364, T. D. 32093, the merchandise was sheets of dried rag pulp intended to be-used to make paper. The collector assessed it for duty as paper, not specially provided for. The Board of General Appraisers held it dutiable as manufactures of cotton or as manufactures of flax. The-importer claimed it dutiable by similitude to wood pulp. Our appellate court held that the Board’s classification was correct. Clearly to classify the merchandise under the eo nomine provision for paper would not have been proper in view of the fact that the final manufactured state of the imported commodity was to be paper, and therefore, at the time of importation, it must have been something less than, paper. Counsel for the Government stresses the point that Congress intended to cover only the raw material when it designated boron carbide eo nomine, and as authority refers to the remarks of Senators Barkley and Smoot. (Congressional Record, vol. 72, part 4, 71st Cong., 2d sess., p. 3717.) Senator Barkley was of the opinion that the eo nomine designation for boron carbide should be stricken from the bill because it was provided for as an artificial abrasive under paragraph 1570, if crude, and under paragraph 1415, if further advanced in manufacture, and that boron carbide was a raw material. Senator Smoot contradicted Senator Barkley, stating that they were talking about a manufactured product, to wit, boron carbide. From this meager discussion Government counsel deduces that the boron carbide contemplated is the material-as it comes from the furnace. In our opinion, it" }, { "docid": "22646255", "title": "", "text": "he must prove the correct classification as well. United States v. Danker & Marston, 2 Ct. Cust. Appls, 462, T. D. 32208; Benrus Watch Co. v. United States, 21 CCPA 139, T. D. 46467. Thus, unless the instant merchandise is dutiable under paragraph 701 as “beef * * * fresh, chilled or frozen,” we must uphold the collector’s classification, be it correct or incorrect. I do not dispute the fact that as between the involved provisions of paragraph 701 and 706, the former is more specific. Numerous cases decided by this court and its predecessor in customs jurisdiction leave no doubt but that this is correct. Nootka Packing Co. et al. v. United States, 22 CCPA 464, T. D. 47464; Mawer Co. v. United States, 7 Ct. Cust. Appls. 493, T. D. 37108; Crosse & Blackwell Co. v. United States, 36 CCPA 33, C. A. D. 393; Brown & Co. v. United States, 6 Ct. Cust. Appls. 415, T. D. 35977. The question which- must be answered, however, is not whether “beef * * * fresh, chilled or frozen” is more specific than “meats * * * prepared,” but whether or not the instant merchandise is beef for tariff purposes. For as aforesaid, if the merchandise is not dutiable under paragraph 701, the collector’s classification must be sustained. In the Nootka Packing case, supra, this court stated: * * * an eo nomine statutory designation of an article, without limitations or a shown contrary legislative intent, judicial decision, or administrative practice to the contrary, and without proof of commercial designation, will include all forms of said article. * * * [Emphasis added.] While it cannot be disputed that “beef” is an eo nomine designation, I am of the opinion that the Government has proved commercial designation of that term, which designation excludes the here involved merchandise. Four witnesses testified on behalf of the Government in the instant case. Three of these witnesses stated categorically that, based on their experience, the term “beef” had a definite, uniform and general meaning in the United States at, prior to and subsequent to June" }, { "docid": "17049614", "title": "", "text": "In United States v. General Dyestuff Corp., 29 C. C. P. A. 53, C. A. D. 170, certain Montan wax was claimed to be classifiable under the provision for mineral wax. The wax imported, however, had been changed in character by bleaching and chemical action to a condition suitable for a highly specialized use for which it was not adaptable before such treatment and the court hold it to be classifiable as a nonenumerated manufactured article rather than as a manufacture of wax or as “Wax: * * * mineral, not specially provided for.” The preparation of the material for a highly specialized use by changing its composition clearly distinguishes that case from the case at bar. There, in order to change the form of the material, chemical action was necessary. In Ishimitsu v. United States, 11 Ct. Cust. Appls. 186, T. D. 38963, certain seaweed boiled with a sauce and canned was assessed as vegetables, prepared in any way. The importer claimed free entry therefor as seaweeds, crude or unmanu-factured, or as seaweeds, manufactured.. The court held that the collector had properly classified the merchandise, stating that— The tariff act distinguishes between a mere advancement and a manufacture. An importation can not be assumed to be a manufacture merely because shown to be advanced. [See syllabus.] The Ishimitsu case, supra, cannot be used as an authority for holding-boron carbide to be excluded from its eo nomine provision inasmuch as-the appellate court did not have before it for consideration an unqualified provision therefor, or a commodity composed solely of seaweeds. In Downing v. United States, 2 Ct. Cust. Appls. 364, T. D. 32093, the merchandise was sheets of dried rag pulp intended to be-used to make paper. The collector assessed it for duty as paper, not specially provided for. The Board of General Appraisers held it dutiable as manufactures of cotton or as manufactures of flax. The-importer claimed it dutiable by similitude to wood pulp. Our appellate court held that the Board’s classification was correct. Clearly to classify the merchandise under the eo nomine provision for paper would not have" }, { "docid": "7443304", "title": "", "text": "descriptive of the articles or materials intended to be covered thereby. In its holding, our appellate court in the Garlock case, supra, stated that the trial court had correctly held that the clause “not specially provided for” lessens the relative specificity of a provision only where the competing provisions are otherwise equally applicable to involved merchandise, or where the merchandise is eo nomine provided for in a competing provision. It is well settled that if an article is more specifically de scribed in a paragraph containing the “not specially provided for” clause than in a paragraph not containing such clause, the presence of the clause in the one paragraph will not have the effect of excluding the article from the paragraph where it is more specifically provided for. United States v. Herman H. Sticht & Co., 22 C. C. P. A. (Customs) 40, T. D. 47048. ' In the case at bar we are dealing with the eo nomine provision for “Spangles and beads * * * not specially provided for” which first appeared in the Tariff Act of 1930 (paragraph 1503). The eo nomine provision for “spangles” in paragraph 1503 of the Tariff Act of 1930 is more specific than the catch-all provision for “manufactures, wholly or in chief value of” gelatin contained in paragraph 41 of the present act. In Louis Metzger & Co. v. United States, 146 Fed. 132, the Circuit Court of Appeals, Second Circuit, in a per curiam decision held that the provision in paragraph 408 of the Tariff Act of 1897 for “fabrics * * * and other articles, not specially provided for * * * composed wholly or in part of * * * spangles made of * * * gelatin” was more specific than the provision in paragraph 450 of the said act for “Manufactures of * * * gelatin.” The court therein affirmed a decision of the lower court (Same v. Same, 141 Fed. 381), wherein certain hat crowns composed chiefly of gelatin spangles were held dutiable under the provisions of paragraph 408, supra, and as to which merchandise the lower" }, { "docid": "22784925", "title": "", "text": "in paragraph 339 but it is possible that the continuation in that paragraph of the phrase “containing electrical heating elements as constituent parts,” which was in the 1922 Act, has a bearing on the matter. Appellant’s first point has not convinced us of error below. The next and major argument of appellant is that classification in paragraph 339 is compelled by the fact that it is a “use” provision which must prevail over paragraph 353, which is said to be an eo nomine or a descriptive designation. This result is supposed to be required by a firmly established “doctrine” that, under the circumstances, the use designation prevails. The highest, and we believe the only, authority cited for this dogmatic proposition in appellant’s brief is the opinion of the Customs Court in the Meissner case, supra. While it is true that this court and its predecessor on many occasions have held that a use provision should prevail over some other, and have used the word “doctrine” in referring to the “doctrine of use,” an examination of a sufficient number of cases will show that this so-called doctrine is subject to “exceptions” whenever it comes into conflict either with a clearly expressed legislative intent or a competing provision which is obviously more specific than the “use” provision, as applied to the merchandise at bar. Actually, the “doctrine” appears to be a convenient rule of thumb for resolving issues where the competing provisions are otherwise in balance. It grew out of cases such as Fink v. United States, 170 U.S. 584, where “medicinal preparations,” a use designation, was in fact more specific than “chemical compounds and salts.” After discussing that case, our predecessor court said, in Drakenfeld & Co. v. United States, 9 Ct. Cust. Appls. 124, 126, T.D. 37979, that the doctrine could be precisely stated as follows: * * * this designation according to a specific use should now prevail over a competing description of a general character, without special limitations as to use or other qualification. It took that quotation, adding the emphasis shown, from its own opinion in a" }, { "docid": "22545174", "title": "", "text": "in air-tight containers” or entitled to free entry as “other shellfish * * * prepared or preserved * * * not specially provided for.” The importer contends, that the involved merchandise is not “clams” for the reason that it is something more than clams— processed material obtained from clams — and relies largely upon the decision of this court in United States v. Sheldon & Co., 14 Cust. Appls. 228, T. D. 41708, to support this contention. The importer argues that “The enumeration of 'clams' in the plural is an indication that whole clams, identifiable as individuals, are intended, rather than the processed material obtained from clams.” In support of the Government’s contention that the merchandise is dutiable as assessed, three arguments are made: First, that the case of Alexander & Baldwin, Ltd. v. United States, 21 C. C. P. A. (Customs) 558, T. D. 46988, is stare decisis; second, that the legislative history of the provisions under consideration indicates that it was the intent of Congress to make the merchandise at bar dutiable as assessed; third, that paragraph 721 (b) is an eo nomine provision, and is a more specific description of the merchandise involved than is said paragraph 1761. The imported merchandise was entered and invoiced as “minced clams.” Although cut into pieces, cleaned, and cooked, according to the testimony of the importers, it can be readily identified as parts of clams. Paragraph 721 (b) of the Tariff Act of 1930 provides for “Clams, clam juice, or either in combination with other substances, packed in air-tight containers.” It will be observed that this language is not restricted to clams in their raw or natural state, nor is it restricted to entire clams. It includes any clams in any condition, so long as they are clams. “Where a dutiable provision names an article without terms of lifnitation all forms of the article are thereby included unless a contrary legislative intent otherwise appears.” Smillie v. United States, 11 Ct. Cust. Appls. 199, 201, T. D. 38966. In Tower & Sons v. United States, 11 Ct. Cust. Appls. 157, 162, T." }, { "docid": "23500473", "title": "", "text": "it is a use provision. Semble, United States v. Quon Quon Company, 46 CCPA 70, C.A.D. 699; New York Merchandise Co., Inc. v. United States, 44 Cust. Ct. 144, C.D. 2169. Radios and phonographs apparently are provided for by eo nomine designations. See Louis Wolf & Co., Bing Wolf Corp. v. United States, 19 CCPA 132, T.D. 45258. In applying the rule of relative specificity, there is little assistance in general headnote 10(c) which expresses the truism that where an article is described in two provisions of the schedules, it is classifiable in the provision which most specifically describes it. Resorting to prior judicial determinations for assistance, a recent decision of the Court of Customs and Patent Appeals holds that the more specific provision is the one having requirements which are more difficult to satisfy. United States, etc. v. Simon Saw & Steel Company, supra. Also, the appellate court in United States v. Astra Trading Corp., 44 CCPA 8, C.A.D. 627, reaffirmed the well-established principle that an eo nomine designation is preferred to terms of general descriptions and to enumerations which are broader in scope. And, in United States v. Lansen-Naeve Corp., 44 CCPA 31, C.A.D. 632, it was held that a “not specially provided for” clause in a use provision excludes articles enumerated elsewhere by description or eo nomine designation. Applying these principles, we conclude that even though the cabinets are furniture, they are more specifically provided for within the superior heading encompassing radio-phonograph combinations. To be classifiable as not specially provided for furniture of wood, an article of wood need only be a movable article of utility used to equip dwellings or other establishments. To meet the requirements for a part of a radio-phonograph combination, the wooden cabinets, as stated above, also had to be dedicated to a sole and specific use and to serve a useful function in connection with the radio-phonograph combination. In other words, the superior heading encompassing radio-phonograph combinations covers only such articles of furniture as are used for parts of such radio-phonograph combinations. The remaining issue is whether the cabinets, as parts of" }, { "docid": "22061904", "title": "", "text": "United States v. Lyon & Healy, 4 Ct. Cust. Appls. 438, T. D. 33873, wherein reference was made to “parts of musical instruments.” The court in that case stated — - The phrase \"parts of musical instruments,” as applied to merchandise of more or less definite construction, makes it dutiable according to use. * * * _ We find, therefore, that the competing provisions before us are both applicable not only as to scope of descriptive language but also because both provisions are controlled by use. Further on the point of use, it is observed that “Parts * * * for motor cycles” is a provision for a single or a specific use, whereas the provision for measuring devices embraces articles designed for use on various instruments. A similar duality was presented in the case of United States v. Herman H. Sticht & Co., 22 C. C. P. A. (Customs) 40, T. D. 47048, where the issue was the proper classification of certain indicators which were attached to the transmitter of a radio telegraph apparatus to indicate the average number of words transmitted during a given time. The merchandise had been classified as a “mechanism, device, or instrument intended or suitable for * * * indicating * * * the speed of arbors * * * or similar uses” within the provisions of paragraph 368 (a), supra, and was held to be properly subject to duty as a part of “electrical telegraph, * * * radio, * * * devices” as provided in paragraph 353 of the act of 1930. In arriving at its conclusion therein, the court stated — ■ * * * Assuming, without deciding, that the devices in question fall within the descriptive terms of said paragraph 368, nevertheless the wireless telegraph transmitters to which they are attached are eo nomine provided for in paragraph 353, either as “electrical telegraph” or as “radio” apparatus. We think the transmitting apparatus is properly defined by either term. The device in question is a part of an electrical telegraph apparatus, ór a part of a radio apparatus, and we think" }, { "docid": "22545175", "title": "", "text": "assessed; third, that paragraph 721 (b) is an eo nomine provision, and is a more specific description of the merchandise involved than is said paragraph 1761. The imported merchandise was entered and invoiced as “minced clams.” Although cut into pieces, cleaned, and cooked, according to the testimony of the importers, it can be readily identified as parts of clams. Paragraph 721 (b) of the Tariff Act of 1930 provides for “Clams, clam juice, or either in combination with other substances, packed in air-tight containers.” It will be observed that this language is not restricted to clams in their raw or natural state, nor is it restricted to entire clams. It includes any clams in any condition, so long as they are clams. “Where a dutiable provision names an article without terms of lifnitation all forms of the article are thereby included unless a contrary legislative intent otherwise appears.” Smillie v. United States, 11 Ct. Cust. Appls. 199, 201, T. D. 38966. In Tower & Sons v. United States, 11 Ct. Cust. Appls. 157, 162, T. D. 38948, boiled down cider was held to come within the statutory designation “cider,” as against “fruit juices” and “fruit syrups,” the court saying, “when the term ‘cider ’ was written into the provision without words of limitation it must be assumed that it was intended to include all kinds of cider.” To the same effect is Schade v. United States, 5 Ct. Cust. Appls. 465, T. D. 35002, where frozen wheat was involved. It is apparent that this was the intention of the Congress in enacting this provision. We quote a portion of the report of the Ways and Means Committee of the House of Representatives, relative to H. R. 2667, now the Tariff Act of 1930. Report No. 7. 71st Cong., 1st sess., p. 74: Special provision is made for the caviar from sturgeon roe, which is the most expensive form of cavair, and for canned clams. The latter is a new industry of interest to both coasts of the United States. On the Atlantic coast the competition is from Canada and on" }, { "docid": "18192059", "title": "", "text": "an eo nomine or “specific provision,” as that term is used in Rule 10(ij), for the imported farm tanks. See Parts Manufacturing Associates v. United States, 73 Cust. Ct. 42, 48, C.D. 4552, 377 F. Supp. 1356, 1359 (1974). Moreover, with respect to the second provision of item 666.00, this is a general basket provision for all agricultural and horticultural implements not specially provided for in the TSUS. Such general basket provisions containing the clause “not specially provided for” are not specific provisions within the meaning of General Interpretative Rule 10(ij). In competition between a parts provision and a general basket provision, merchandise is properly classifiable under the parts provision. See Ideal Toy Corp. v. United States, 58 CCPA 9, 13, C.A.D. 996, 433 F. 2d 801, 803-04 (1970). Furthermore, we believe that headnote 1 of Schedule 6, part 4, subpart A demonstrates a clear Congressional preference for classification in subpart A vis-a-vis any other subpart of part 4. That headnote reads as follows: “A machine or appliance which is described in this subpart and also is described elsewhere in this part is classifiable in this subpart.” The invasive language of this headnote is applicable to all other subparts of part 4; moreover, articles which meet the description of “parts thereof” in an item of subpart A are subject to the headnote. Costa International Corp. v. United States, 58 CCPA 48, C.A.D. 1003, 434 F. 2d 1053 (1970); American SF Products, Inc. v. United States, 61 Cust. Ct. 257, C.D. 3593, 291 F. Supp. 685 (1968). Applying the headnote, it follows that item 661.35, which is in subpart A, must prevail over item 666.00, which is in subpart C. Appellee contends that headnote 1 of Schedule 6, part 4, subpart A is inapplicable because the imported merchandise is not a machine or appliance which is described in subpart A. It is clear from our discussion above that we disagree with this contention. The Customs Court incorrectly found that the legislative intent of Congress in enacting subpart A is evidenced by its assigned title, which reads: “Boilers, Non-Electric Motors and Engines," }, { "docid": "22123718", "title": "", "text": "apparently known as patio furniture. In use, the articles are placed on wrought iron stands of domestic manufacture, a sample of which is in evidence as plaintiff’s illustrative exhibit 2, and the assembled article is used as a coffee table or cocktail table. Tbe pertinent provisions of tbe Tariff Act of 1930, as modified by trade agreement concessions, read: Par. 411. * * * baskets * * * any of the foregoing wholly or in chief value of bamboo, wood, straw, papiermache, palm leaf, or composition of wood, not specially provided for, 50 per centum ad valorem. Par. 412. Furniture, wholly or partly finished and parts thereof, wholly or in chief value of wood, and not specially provided for: Chairs_20% ad val. Other furniture_ 12)4% ad val. Parts of any of the foregoing_20% ad val. The Customs Court, citing as authority United States v. Byrnes & Co., 11 Ct. Cust. Appls. 68, held that tbe term “baskets” has a use connotation and therefore articles, to be encompassed by tbe term must, in fact, be used as baskets, and since the goods herein are used as; table tops they are not baskets. The Government, while it admits that the articles are used as parts; of furniture, contends that the provision for baskets in paragraph 411 is an “eo nomine designation” and not a “use designation” and. consequently, since the merchandise comes within the moaning of that term, its actual use is immaterial. The issue to ,be decided is, therefore, whether the merchandise falls; within the--provision for baskets, regardless of its admitted use .as parts of furniture. The Government brief reviews numerous cases in which a tariff provision for “baskets” was involved for the purpose of showing that the term is an eo nomine provision and “not a use designation,” so that use is immaterial. In the first place, each of the cited appellate court cases may be distinguished in that the dispute was between an eo nomine provision for baskets and a much broader class provision, i.e., manufactures of willow, manufactures of chip, or manufactures of wood, while in the case" }, { "docid": "22061906", "title": "", "text": "that a “part” of such apparatus provided for in paragraph 353 is a more specific designation than- the general descriptive language of a “mechanism, device, or instrument intended or suitable for * * * indicating * * * the speed of arbors, * * * or similar uses”, found in paragraph 368. It is true, as pointed out by the Government, that paragraph 353 contains the clause “not specially provided for”, while paragraph 368 does not. However, it is well settled by this court that if an article is more specifically described in a paragraph containing the “not specially provided for” clause than in a paragraph not containing such clause, the presence of the clause in the'one paragraph will not have the effect of excluding the article from the paragraph where it is more specifically provided for. Knauth, Nachod & Kuhne v. United States, 4 Ct. Cust. Appls. 58, T. D. 33307; Loewenthal & Co. v. United States, 6 Ct. Cust. Appls. 209, T. D. 35464; Comstock & Theakston v. United States, 12 Ct. Cust. Appls. 502, T. D. 40698. * * * * * Hi * We think it is clear that when Congress provided eo nomine for telegraph and radio apparatus, and for parts thereof, in said paragraph 353, it intended that all such should be dutiable thereunder, unless more specifically described elsewhere in the tariff act. Being of the opinion that the articles here in question are more specifically described as parts of electric telegraph or radio apparatus than as devices for indicating the speed of arbors, or having similar uses, we hold that they are properly classifiable under said paragraph 353 * * *. All other considerations being equal, it is our opinion that the provision for “Parts * * * for motor cycles” in paragraph 369 (c) is a more specific designation than the general descriptive language of a “mechanism, device, or instrument intended or suitable for measuring * * * distance [and], speed,” as provided in paragraph 368 (a), supra. The fact that the former provision contains the clause “not specially provided for,” whereas" }, { "docid": "15608840", "title": "", "text": "can be resorted to it must be found that the article is not fairly included within any of the enumerating clauses of the act. [General Meetrie Go. v. Unites. States, 4 Ct. Oust. Appls. 398, T.D. 33839.] It has been held that the authority of the President to proclaim modifications of “existing duties and other import restrictions” is limited by the Trade Agreements Act, as amended and extended, to modifying existing rates of duty on existing classifications, that is to say, that such modifications can only apply to merchandise already comprehended within the designated tariff paragraph. Abercrombie & Fitch Co. v. United States, 9 Cust. Ct. 336, C.D. 709; Geo. S. Bush & Co., Inc., et al. v. United States, 26 Cust. Ct. 251, C.D. 1332, affirmed in Same v. Same, 42 C.C.P.A. (Customs) 190, C.A.D. 592; United States v. Canadian National Railways, 29 C.C.P.A. (Customs) 272, 278, C.A.D. 202; and United States v. Curley-Bates Co., 46 C.C.P.A. (Customs) 14, C.A.D. 688. Applying the rule of these cases to the eo nomine provision for synthetic rubber articles in paragraph 1558, which was effected by the modification of that paragraph contained in T.D. 51802 and T.D. 54108, supra, it would appear that there are embraced by that provision only such synthetic rubber articles as would have been classified, prior to the said modifications, under the nonenumerated manufactured articles provision. Applying the rule of the General Electric Co. case, supra, to the facts in the case at bar, it would appear that the involved rainwear is fairly included within one of the enumerating clauses of the tariff act, viz, the provision for articles in part of carbon in paragraph 216. Consequently, it follows that such of the rainwear at bar which was in part of carbon is properly dutiable, as assessed, under the enumeration for manufactured articles in part of carbon, not specially provided for, in paragraph 216, as modified. The situation in the case at bar is different from that involved in the case of Atalanta Trading Corp. v. United States, 42 C.C.P.A. (Customs) 90, C.A.D. 577, on which plaintiff chiefly" }, { "docid": "22061907", "title": "", "text": "Appls. 502, T. D. 40698. * * * * * Hi * We think it is clear that when Congress provided eo nomine for telegraph and radio apparatus, and for parts thereof, in said paragraph 353, it intended that all such should be dutiable thereunder, unless more specifically described elsewhere in the tariff act. Being of the opinion that the articles here in question are more specifically described as parts of electric telegraph or radio apparatus than as devices for indicating the speed of arbors, or having similar uses, we hold that they are properly classifiable under said paragraph 353 * * *. All other considerations being equal, it is our opinion that the provision for “Parts * * * for motor cycles” in paragraph 369 (c) is a more specific designation than the general descriptive language of a “mechanism, device, or instrument intended or suitable for measuring * * * distance [and], speed,” as provided in paragraph 368 (a), supra. The fact that the former provision contains the clause “not specially provided for,” whereas the latter provision does not, has no effect upon our conclusion herein. It was the contention of defendant in its brief that if the competing paragraphs in issue should b¿ found of equal applicability, then, in accordance with paragraph 1559 of the Tariff Act of 1930 (19 U. S. C. § 1001, par. 1559), paragraph 368 (a), supra, providing the higher rate of duty, should prevail, which was the conclusion arrived at by the appellate court in the Cramer case, supra. In that case, the court had before it certain electric automatic time switches stipulated to have been “manufactured and used solely for controlling and distributing electrical energy.” The collector classified the merchandise within the provisions of paragraph 368 (a), supra, for “any mechanism, device, or instrument intended or suitable for * * * performing any operation or function at a predetermined time or times.” The plaintiff therein contended that the merchandise should have been classified as “All articles suitable for producing, rectifying, modifying, controlling, or distributing electrical energy” as provided in the first subdivision" }, { "docid": "15608836", "title": "", "text": "subject matter of the instant proceeding is similar in use to rubber rainwear. Counsel for the plaintiff, in the brief filed in its behalf, contends that the provision in paragraph 1558 of the tariff act, as modified, for “Synthetic rubber and synthetic rubber articles” is an eo nomine provision; that it is not modified by a “not specially provided for” clause, as are the two competing provisions in paragraphs 216 and 1537(b) ; and that the stipulated description of the merchandise brings it within the designation contained in paragraph 1558. Counsel for the defendant, in the brief filed in its behalf, concedes that as to the articles which are not in part of carbon, i.e., those assessed under paragraph 1537 (b) by similitude, the contention of the plaintiff for duty under the provision for synthetic rubber articles in paragraph 1558 is correct. However, with respect to the articles to which carbon was added, counsel for the defendant contends that the application of the rule of relative specificity requires that they be classified under the provision in paragraph 216. In this connection, counsel states: It has been held on many occasions that a provision for articles “in part” of a named material is more specific than a provision for articles in chief value of some other material, citing Altman & Co. v. United States, 13 Ct. Cust. Appls. 315, T.D. 41232; United States v. Marshall Field & Co., 17 C.C.P.A. (Customs) 287, T.D. 43693; United States v. Bullocks Inc., 24 C.C.P.A. (Customs) 41, T.D. 48330; and Ropa Co. v. United States, 27 C.C.P.A. (Customs) 42, C.A.D. 59. In the reply brief filed on behalf of the plaintiff, its counsel points out that the foregoing cases cannot be considered as authorities for the proposition stated, especially as related to the competing provisions in the case at bar, and we agree with this view. The Altman case, as counsel for the plaintiff points out, is not relevant to the present issue, inasmuch as the sole question in that case was one of entireties rather than one of relative specificity. .The other three eases" }, { "docid": "7443307", "title": "", "text": "the court stated: It is an elementary principle in the construction of the tariff that a provision for a designated article is more specific than that for a material. The competition in the present case is between the eo nomine designation for “spangles” (paragraph 1503) and a general provision for manufactures of gelatin (paragraph 41). The former is the more specific. The plaintiff in its brief directs our attention to United States v. Downing, 1 Ct. Cust. Appls. 337, T. D. 31434, wherein the court held that a provision for “manufactures of” is a specific designation for tariff construction. It then contends that it follows that spangles, being specifically designated as manufactures of gelatin, would not be “not specially provided for,” so that gelatin spangles would not be dutiable under paragraph 1503 as spangles, not specially provided for. However, “spangles” are not specifically designated as “manufactures of gelatin” and the clause “not specially provided for” contained in paragraph 1503 of the present act does not, therefore, exclude the merchandise in question from the eo nomine provision therein for “spangles,” which is a more specific designation than manufactures of gelatin. For the reasons set forth above, we hold the gelatin spangles at bar to be properly dutiable under paragraph 1503, Tariff Act of 1930, as modified by the President’s proclamation, T. D. 51898, under the eo nomine provision therein for “Spangles * * * not specially provided for” at the rate of 27% per centum ad valorem, as assessed. The protest is overruled and judgment will be issued accordingly." }, { "docid": "7443303", "title": "", "text": "quoted.] The principles enunciated in the Snow’s case, supra, were adopted in United States v. Garlock Packing Co., 32 C. C. P. A. (Customs) 79, C. A. D. 289, the court therein holding that the provision in paragraph 216 of the Tariff Act of 1930 for “articles or wares, composed wholly or in part of graphite,” although accompanied by the clause “not specially provided for,” was a more specific designation for certain so-called engine packing, composed in chief value of asbestos yarn, 2 per centum or more of graphite, and varying percentages of oil, than was the provision in paragraph 1501 (a) of the same act for “manufactures of yarn of asbestos or of asbestos and any other spinnable fiber.” The court stated that the subject of the provision in paragraph 1501 (a), supra, is not yarn, slivers, etc., but is “all manufactures of” yarn, slivers, etc., composed wholly of asbestos, or partly of asbestos and any other spinnable fiber, and that such provision is not an eo nomine provision for yarn, but is merely descriptive of the articles or materials intended to be covered thereby. In its holding, our appellate court in the Garlock case, supra, stated that the trial court had correctly held that the clause “not specially provided for” lessens the relative specificity of a provision only where the competing provisions are otherwise equally applicable to involved merchandise, or where the merchandise is eo nomine provided for in a competing provision. It is well settled that if an article is more specifically de scribed in a paragraph containing the “not specially provided for” clause than in a paragraph not containing such clause, the presence of the clause in the one paragraph will not have the effect of excluding the article from the paragraph where it is more specifically provided for. United States v. Herman H. Sticht & Co., 22 C. C. P. A. (Customs) 40, T. D. 47048. ' In the case at bar we are dealing with the eo nomine provision for “Spangles and beads * * * not specially provided for” which first appeared in" } ]

[ { "docid": "6957272", "title": "", "text": "type. The second or improvement application enjoyed a speedy prosecution in the Pat ent Office and a patent issued thereon about nine months after it was filed. Meanwhile the first application met with continuing rejection and on the third action, given six months after the applicant’s patent issued, faced the additional rejection of double patenting. The examiner thus stated his position as to the appealed claims in his initial double patenting rejection: Claims 1-4, 11-13 * * * are rejected on the ground of double patenting. The claims do not patentably distinguish over claims 4 and 5 of applicant’s own patent No. 2,983,953. The claims appear to differ from the allowed [i. e. patented] claims only in scope. Subsequently, and after the applicant had evidently contended, on the basis of differences between the patent and application claims, that there was no double patenting, the examiner gave his final rejection in which he newly cited three references “of interest” on which he relied to show that some of those differences, at least, were “old in the art.” However, he made no reference to these references in his answer, the board neither mentioned nor relied on them in its opinion, and they have not been included in the record in this court. Under the circumstances, they are not before us. There is only one reference before us and that is Borah’s patent. To differentiate this case from many other double patenting situations, we note that it involves no assignment, terminal disclaimer, or diversity of inventorship. The sole question is whether an individual applicant is precluded from obtaining the appealed claims by reason of claims he has already obtained in his patent. The Inventions As above indicated, we are not concerned with a single invention but with the inventions disclosed in the first-filed application (here on appeal) and the improvement inventions disclosed in the Borah patent which issued on the later-filed application. We will describe them in that order. The conventional prior art hydraulic platen press has upper and lower platens, arranged horizontally and parallel, the upper platen being fixed on the four" } ]

[ { "docid": "9571986", "title": "", "text": "one application. See In re Berg, 140 F.3d at 1434. However, the court in In re Berg also explained that \"[i]f ... an applicant could not have filed both sets of claims in one application” — which is the circumstance that the dissenter asserted obtained in Eli Lilly where one invention and filing preceded the other by nine years — \"but the first application was delayed in prosecution causing the second application to issue as a patent first, then one would expect that the 'control test’ as discussed in Borah would be applied to determine whether the applicant or the PTO is responsible for the delay.” Id. at 1437. Where that scenario obtained, the only question for determining whether or not the one-way or the two-way test applied, according to the court in In re Berg, was who was responsible for the delay in prosecution: \"[T]he one-way test is appropriate ... if the applicant is found responsible for the delay in prosecution of the first-filed application,” while \"[t]he two-way test may be appropriate ... in the unusual circumstance that the PTO is solely responsible for the delay in causing the second-filed application to issue prior to the first.” Id. Thus, the majority in Eli Lilly applied a one-way test of obviousness-type double patenting in the circumstances in which the court in In re Berg also stated that such a test should apply. While the rule that the one-way test applies unless the PTO was solely responsible for delays in prosecution of the later-issued patent does not cure the “anomaly” recognized by the dissenter in Eli Lilly, it does reasonably turn upon another interest, which is punishment of the party responsible for delay in the prosecution of an earlier-filed, but later-issued patent by the same inventor. . The court acknowledges that there are references to the \"cylindrical rod” of the '728 patent as a “tubular guide 78” in the Description of the Preferred Embodiment in the '728 patent. See the '728 patent, Description of the Preferred Embodiment, col. 3, l. 37. The pertinent paragraph of the Description is as follows: A" }, { "docid": "17535052", "title": "", "text": "the rejection of its application claims cannot be sustained because the invention of claim 1 of the ’916 patent is not obvious in light of claim 1 of the application. Because we hold that the Board was correct in applying the one-way test, however, we do not reach the issue of whether Berg’s ’916 patent claims are patentably distinct over the application claims. In making the argument that it is not responsible for the relative rates of prosecution, Berg relies on cases such as Borah and Calvert in which an earlier-filed basic application was rejected based on a commonly-owned, later-filed improvement patent. See Borah, 354 F.2d at 1009, 148 USPQ at 214; Calvert, 97 F.2d at 640, 25 CCPA at 1336. In these cases, the PTO took longer to examine the basic application than it did the improvement, causing the applications to issue in reverse order of filing. Berg asserts that its situation is analogous to those of the applicants in cases like Borah and Calvert because, as it filed the two applications simultaneously, it did not exercise control over their progress through the PTO. According to Berg, therefore, the PTO must be deemed responsible for the species claims issuing pri- or to the genus claims, thus entitling Berg to a patent on the genus claims without a terminal disclaimer. The Board took the opposite view: the PTO cannot be seen as controlling the rates of prosecution because Berg chose to file its applications separately but simultaneously. The Board further found that there is no apparent reason why appellants were prevented from presenting claims to the generic invention for examination in the application which matured into the issued Berg patent wherein claims to the best mode were presented. Further, like Schneller, subject matter covered by the claims of the Berg application (i.e., the best mode of practicing the invention) is fully disclosed and expressly claimed in the claims of the Berg patent. Berg, slip op. 13. The Board held that “the term of patent protection for the best mode would be unjustifiably extended beyond the statutory time limit by allowance" }, { "docid": "17535050", "title": "", "text": "not identical, the court must ask whether the former defines merely an obvious variation of the latter. See Goodman 11 F.3d at 1052, 29 USPQ2d at 2015-16. If the application claim is not patentably distinct, in order to overcome the double patenting rejection, the applicant must file a “terminal disclaimer,” foregoing that portion of the term of the second patent that extends beyond the term of the first. See id. at 1052, 11 F.3d 1046, 29 USPQ2d at 2016; see also Emert, 124 F.3d at 1461-62, 44 USPQ2d at 1152. Under special circumstances, however, this court and the Court of Customs and Patent Appeals have both made an exception and instead have applied a two-way test. Specifically, in Braat, this court examined the application claim and the patent claim to determine whether each was obvious in view of the other, rather than considering only whether the application claim was patentably distinct from the patent claim. See 937 F.2d at 593, 19 USPQ2d at 1292; see also Borah, 354 F.2d at 1009, 148 USPQ at 214; Calvert, 97 F.2d at 640, 25 CCPA at 1336. Since Braat, many patent applicants facing an obviousness-type double patenting rejection under the one-way test have argued that they actually are entitled to the two-way test. The two-way test, however, is a narrow exception to the general rule of the one-way test. Indeed, the primary basis for the Braat decision—different inventive entities— was removed by the Patent Law Amendments Act of 1984 (the “1984 Act”). Nevertheless, the notion survives that in certain unusual circumstances, the applicant should receive the benefit of the two-way test. The question then is: when? III. Application of the Obviousness-Type Double Patenting Rules to this Case Berg does not argue here that it survives the one-way test, i.e., that its application claims are nonobvious in light of the claims of the ’916 patent, but only that it is entitled to application of the two-way test because it filed the two applications simultaneously, and therefore cannot be responsible for their rates of prosecution through the PTO. According to Berg, under a two-way test," }, { "docid": "17535051", "title": "", "text": "Calvert, 97 F.2d at 640, 25 CCPA at 1336. Since Braat, many patent applicants facing an obviousness-type double patenting rejection under the one-way test have argued that they actually are entitled to the two-way test. The two-way test, however, is a narrow exception to the general rule of the one-way test. Indeed, the primary basis for the Braat decision—different inventive entities— was removed by the Patent Law Amendments Act of 1984 (the “1984 Act”). Nevertheless, the notion survives that in certain unusual circumstances, the applicant should receive the benefit of the two-way test. The question then is: when? III. Application of the Obviousness-Type Double Patenting Rules to this Case Berg does not argue here that it survives the one-way test, i.e., that its application claims are nonobvious in light of the claims of the ’916 patent, but only that it is entitled to application of the two-way test because it filed the two applications simultaneously, and therefore cannot be responsible for their rates of prosecution through the PTO. According to Berg, under a two-way test, the rejection of its application claims cannot be sustained because the invention of claim 1 of the ’916 patent is not obvious in light of claim 1 of the application. Because we hold that the Board was correct in applying the one-way test, however, we do not reach the issue of whether Berg’s ’916 patent claims are patentably distinct over the application claims. In making the argument that it is not responsible for the relative rates of prosecution, Berg relies on cases such as Borah and Calvert in which an earlier-filed basic application was rejected based on a commonly-owned, later-filed improvement patent. See Borah, 354 F.2d at 1009, 148 USPQ at 214; Calvert, 97 F.2d at 640, 25 CCPA at 1336. In these cases, the PTO took longer to examine the basic application than it did the improvement, causing the applications to issue in reverse order of filing. Berg asserts that its situation is analogous to those of the applicants in cases like Borah and Calvert because, as it filed the two applications simultaneously, it" }, { "docid": "17535056", "title": "", "text": "invention to issue without a terminal disclaimer after a later filed improvement patent). Furthermore, in the present case, unlike Braat, the specifications of the Berg application and of the ’916 patent are identical; the two disclosures are almost exactly alike. The invention described in claim 1 of the ’916 patent, therefore, is anything but “totally separate” from that of the Berg application. In fact, the preferred embodiment of practicing the invention disclosed in the written description of both the application and the ’916 patent is claimed in claim 1 of the ’916 patent. In addition, both the ’916 patent and the application list the same inventive entity, i.e., the same four inventors. Thus all of the excuses accepted by the court in Braat are absent here. Finally, unlike Borah, the inventions disclosed in both sets of claims had been completed before either application was filed. For its own reasons, Berg chose to file two applications even though conventional practice presumably would have counseled filing one application. We hold, therefore, that if an applicant can file all of its claims in one application, but elects not to, it is not entitled to the exception of the two-way test. B. Berg’s Prosecution Facts Are Close to Those in Goodman Contrary to Berg’s assertions, the facts of the present case are close to those in Goodman, a case in which we applied the standard one-way test. In Goodman, the applicant filed both species and genus claims in the same application. The examiner allowed the species claims but rejected the genus claims. Rather than appealing the rejection of the genus claims, the applicant permitted the species claims to issue upon allowance and continued to prosecute the genus claims in a continuation application. The genus claims were subsequently rejected for obviousness-type double patenting in light of the now issued species claims. Rather than file a terminal disclaimer, the applicant appealed to the Board and then to this court. See Goodman, 11 F.3d at 1049, 29 USPQ2d at 2013. This court held that “[although application claims 12 and 13 form the genus containing the species of" }, { "docid": "9571904", "title": "", "text": "whether the applicant could have filed the claims in both of its applications in a single application, noting in its analysis the effect of the change in “inventorship” requirements, which had also been pointed out in In re Emert. The court concluded, first, that the case then before it was not like In re Braat, and did not trigger application of the two-way test: Berg relies on Braat to support application of the two-way test. Braat was an unusual case; moreover, its factual situation is not likely to be repeated since the 1984 Act went into effect. Even assuming that Braat retains some vitality, it is, nevertheless, distinguishable. In Braat the common assignee could not have filed both sets of claims together because the inventive entity named in the application did not invent the subject matter of all the patent claims and vice-versa. See Braat, 937 F.2d at 594, 19 USPQ2d at 1293. In addition, in Braat the “patent invention ... [was] totally separate from that of [the application], and could conceivably have been developed earlier rather than later.” Id. at 593, 937 F.2d 589, 19 USPQ2d at 1292. The court in Braat, however, emphasized the more typical scenario in which, despite common inventive entities, the two-way test applied: “when a later-filed improvement patent issues before an earlier filed basic invention.” Id. (emphasis added); accord Borah, 354 F.2d at 1009, 148 USPQ at 214 (allowing the earlier filed but later allowed basic patent application to issue without a terminal disclaimer because the two applications could not have been filed as one since the improvements were not made until after the application on the basic invention was filed); see also Calvert, 97 F.2d at 640, 25 C.C.P.A. at 1336 (allowing an earlier filed patent application for generic invention to issue without a terminal disclaimer after a later filed improvement patent). Furthermore, in the present case, unlike Braat, the specifications of the Berg application and of the ’916 patent are identical; the two disclosures are almost exactly alike. The invention described in claim 1 of the ’916 patent, therefore, is anything but" }, { "docid": "17535064", "title": "", "text": "application to issue as a patent first, then one would expect that the “control test” as discussed in Borah would be applied to determine whether the applicant or the PTO is responsible for the delay. Under this scenario, the one-way test is appropriate to determine whether a rejection for obviousness-type double patenting will be sustained if the applicant is found responsible for the delay in prosecution of the first-filed application. The two-way test may be appropriate, however, in the unusual circumstance that the PTO is solely responsible for the delay in causing the second-filed application to issue prior to the first. Each of the options for an applicant filing both genus and species claims has distinct advantages and disadvantages. In the present case, Berg deliberately chose to file simultaneously two applications containing almost identical disclosures, with each disclosure supporting both sets of claims. Berg therefore took the risk that it would be required terminally to disclaim. It filed so knowing the law and the likely outcome. The options are neither unfair, nor inconsistent with settled law, and Berg must accept the foreseeable legal consequences of its choice. To embrace Berg’s argument would substantially relax the standards of the obviousness-type double patenting doctrine in all cases of simultaneous filing. This we decline to do. CONCLUSION Because of Berg’s refusal to submit a terminal disclaimer, all of the genus claims in the Berg application are unpatentable over the species claims of Berg’s ’916 patent under the doctrine of obviousness-type double patenting because the one-way test applies here as both genus and species claims could have been filed in a single application. For the above reason, the decision of the Board is AFFIRMED. . Both the Board and Berg treat claim 1 of the ’916 patent and claim 1 of the application as representative of the other pending claims, and we do as well. . Both claim 1 from the application and from the '916 patent are reproduced below. Claim 1 of the Berg Application 1. Method for preparing an abrasive particle suitable for use as an abrasive grit in an abrasive article," }, { "docid": "9571907", "title": "", "text": "they were to those presented in In re Braat. Id. at 1434-35. The court in In re Berg then attempted to clarify the interaction of determinations concerning ability to file both claims simultaneously and control of the prosecution: The two-way exception can only apply when the applicant could not avoid separate filings, and even then, only if the PTO controlled the rates of prosecution to cause the later filed species claims to issue before the claims for a genus in an earlier application. This was the situation in Borah. In Berg’s case, the two applications could have been filed as one, so it is irrelevant to our disposition who actually controlled the respective rates of prosecution. Because Berg could have filed one application, Berg’s case is controlled by factual analogy to and in principle by Goodman. In re Berg, 140 F.3d at 1435 (emphasis added). Attempting to identify more generally the circumstances that would permit application of one test or the other, the court in In re Berg concluded as follows: If an applicant could have filed both sets of claims in a single application because the disclosure of the first application supports the second set of claims, then pursuant to this case and Goodman, the one-way test is appropriate to determine if a rejection for obviousness-type double patenting should be sustained. If, on the other hand, an applicant could not have filed both sets of claims in one application — for example, because the second application claimed an invention that was not adequately disclosed in the first application — but the first application was delayed in prosecution causing the second application to issue as a patent first, then one would expect that the “control test” as discussed in Borah would be applied to determine whether the applicant or the PTO is responsible for the delay. Under this scenario, the one-way test is appropriate to determine whether a rejection for obviousness-type double patenting will be sustained if the applicant is found responsible for the delay in prosecution of the first-filed application. The two-way test may be appropriate, however, in the" }, { "docid": "9571908", "title": "", "text": "have filed both sets of claims in a single application because the disclosure of the first application supports the second set of claims, then pursuant to this case and Goodman, the one-way test is appropriate to determine if a rejection for obviousness-type double patenting should be sustained. If, on the other hand, an applicant could not have filed both sets of claims in one application — for example, because the second application claimed an invention that was not adequately disclosed in the first application — but the first application was delayed in prosecution causing the second application to issue as a patent first, then one would expect that the “control test” as discussed in Borah would be applied to determine whether the applicant or the PTO is responsible for the delay. Under this scenario, the one-way test is appropriate to determine whether a rejection for obviousness-type double patenting will be sustained if the applicant is found responsible for the delay in prosecution of the first-filed application. The two-way test may be appropriate, however, in the unusual circumstance that the PTO is solely responsible for the delay in causing the second-filed application to issue prior to the first. In re Berg, 140 F.3d at 1436-37. e. Eli Lilly The odyssey of the continued viability of the “two-way” test in precedent of the Federal Circuit Court of Appeals concludes with the decision that is the focus of Donaldson’s motion for summary judgment, Eli Lilly & Co. v. Barr Laboratories, Inc., 251 F.3d 955 (Fed.Cir.2001), cert. denied, 534 U.S. 1109, 122 S.Ct. 913, 151 L.Ed.2d 879 (2002). The court’s discussion of the applicable test in that case was comparatively brief, and indeed, was relegated to a footnote: A two-way double patenting test does not apply in this case. The two-way test is only appropriate in the unusual circumstance where, inter alia, the United States Patent and Trademark Office (“PTO\") is “solely responsible for the delay in causing the second-filed application to issue prior to the first. ” ([bold] emphasis added). In re Berg, 140 F.3d at 1437, 46 USPQ2d at 1233 (Fed.Cir. 1998);" }, { "docid": "17535049", "title": "", "text": "our predecessor courts, the Court of Customs and Patent Appeals, also at various times applied an analysis similar to that used in Braat to determine obviousness-type double patenting. See In re Borah, 354 F.2d 1009, 1009, 148 USPQ 213, 214 (CCPA 1966); In re Calvert, 97 F.2d 638, 640, 25 C.C.P.A. 1333, 1336 (CCPA 1938). The essential concern was to prevent rejections for obviousness-type double patenting when the applicants filed first for a basic invention and later for an improvement, but, through no fault of the applicants, the PTO decided the applications in reverse order of filing, rejecting the basic application although it would have been allowed if the applications had been decided in the order of their filing. The question of whether the “one-way” test or the “two-way” test applies, the dispositive issue here, is one of law and therefore reviewed by this court without deference. See In re Emert, 124 F.3d 1458, 1460, 44 USPQ2d 1149, 1151 (Fed.Cir.1997). Under the one-way test, if the scope of the application and the patent claims is not identical, the court must ask whether the former defines merely an obvious variation of the latter. See Goodman 11 F.3d at 1052, 29 USPQ2d at 2015-16. If the application claim is not patentably distinct, in order to overcome the double patenting rejection, the applicant must file a “terminal disclaimer,” foregoing that portion of the term of the second patent that extends beyond the term of the first. See id. at 1052, 11 F.3d 1046, 29 USPQ2d at 2016; see also Emert, 124 F.3d at 1461-62, 44 USPQ2d at 1152. Under special circumstances, however, this court and the Court of Customs and Patent Appeals have both made an exception and instead have applied a two-way test. Specifically, in Braat, this court examined the application claim and the patent claim to determine whether each was obvious in view of the other, rather than considering only whether the application claim was patentably distinct from the patent claim. See 937 F.2d at 593, 19 USPQ2d at 1292; see also Borah, 354 F.2d at 1009, 148 USPQ at 214;" }, { "docid": "6957288", "title": "", "text": "this occurred, of course, while both applications were pending, the record disclosing the following time sequence : 29 Feb. 1960 first application filed (at bar) 27 June 1960 office action 12 Aug. 1960 second application filed (now patent) 22 Dec. 1960 amend first application 18 Apr. 1961 office action in first application 16 May 1961 reference patent issued 20 July 1961 amend first application 28 Nov. 1961 office action, double patenting rejection 23 Feb. 1962 amend first application 5 April 1962 FINAL rejection 17 July 1962 amend first application 3 Oct. 1962 appeal to Board of Appeals 2 Jan. 1964 Board’s 1st decision 5 Feb. 1964 Board denied rehearing 2 Mar. 1964 appeal to CCPA With respect to these dates we note the fact that but for the rejections that have been reversed by the board and the double patenting rejection now before us, a patent on the application at bar could have issued in 1961, within a few months of the date of the Borah patent, and there would have been very little timewise extension of protection. Cf. In re Sarett, 327 F.2d 1005, 51 CCPA 1180. We also note that in the 18 April 1961 action, when the examiner had both applications before him, nothing was said about the second application or any attempt made to apply Rule 78(b), The application of the law to the foregoing facts is not without difficulty as the law and its past application are not without confusion. The view of the examiner as expressed in his answer before the board was that the applicable rule of law is that which forbids more than one patent on one invention and that the appealed claims and patent claims 4 and 5 are all directed to the same invention. He seemed to recognize that the patent claims defined different combinations from the appealed claims but appears to have regarded them as directed to the same invention because the differences (the inclusion of element Y or elements YZ, supra) were unpatentable differences and all claims were simply for “various permutations and combinations of elements of the" }, { "docid": "17535054", "title": "", "text": "of the herein appealed claims.” Id. Although the decision of the Board affirming the application of the one-way test rather than the two-way test to Berg’s application is correct, we hold, however, that this case is not appropriate for application of a “control of prosecution rates” analysis to determine whether Berg is entitled to the two-way test. Rather, we base our affirmance on the second stated rationale of the Board: because Berg could have filed the claims of its separate applications in a single application, and it simply chose to file two applications despite nearly identical disclosures, Berg is not entitled to the two-way test. A. The Special Circumstances Triggering the Two-Way Test are Not Present in Berg’s Case Berg relies on Braat to support application of the two-way test. Braat was an unusual case; moreover, its factual situation is not likely to be repeated since the 1984 Act went into effect. Even assuming that Braat retains some vitality, it is, nevertheless, distinguishable. In Braat the common assignee could not have filed both sets of claims together because the inventive entity named in the application did not invent the subject matter of all the patent claims and viceversa. See Braat, 937 F.2d at 594, 19 USPQ2d at 1293. In addition, in Braat the “patent invention ... [was] totally separate from that of [the application], and could conceivably have been developed earlier rather than later.” Id. at 593, 937 F.2d 589, 19 USPQ2d at 1292. The court in Braat, however, emphasized the more typical scenario in which, despite common inventive entities, the two-way test applied: “when a later-filed improvement patent issues before an earlier filed, basic invention.” Id. (emphasis added); accord Borah, 354 F.2d at 1009,148 USPQ at 214 (allowing the earlier filed but later allowed basic patent application to issue without a terminal disclaimer because the two applications could not have been filed as one since the improvements were not made until after the application on the basic invention was filed); see also Calvert, 97 F.2d at 640, 25 CCPA at 1336 (allowing an earlier filed patent application for generic" }, { "docid": "9571892", "title": "", "text": "over Braat, but nevertheless held that the “two-way test” applied under the circumstances presented: [W]e agree that the reasoning of [In re Borah, 53 C.C.P.A. 800, 354 F.2d 1009 (1966) ] and Chisum, § 9.03[2][c] is applicable in the present case. Philips could not have included the claims of Dil in the Braat application, for Braat did not invent the subject matter of the Dil claims, i.e., information areas having V-shaped side walls at particular angles of inclination. Nor could Philips have included the claims of Braat in the Dil application, for Dil did not invent the subject matter of the Braat application, i.e., adjacent track segments of different phase depth. Philips filed the Braat and Dil applications so as to maintain proper inventorship, with claims directed to Braat’s “subcombination” invention in the first application and claims directed to both Dil’s “subcombination” invention and to the “combination” invention in the second application. Philips even acknowledged in Dil’s application that part of the combination invention was invented by Braat, not Dil. It is not Philips’ fault that the combination claims in the Dil patent issued first. Thus, a double patenting rejection is sustainable here only if claims 5/1 and 6/1 of Dil are not patentably distinct from the subject matter defined by the rejected claims of Braat, and the Board erred in sustaining the double patenting rejection without making such a “two-way” determination. In re Braat, 937 F.2d at 593-94 (emphasis added). Thus, in In re Braat, the court held that a two-way test applied where the assignee of both the application and the patent could not bring both sets of claims in a single application without violating existing law on inventorship, and it was not the assignee’s “fault” that the later-filed “combination” patent issued before the earlier-filed application. b. In re Goodman Subsequently, in In re Goodman, 11 F.3d 1046 (Fed.Cir.1993), the court stated the second step in the analysis of obviousness-type double patenting in terms of a “one-way test,” considering whether “the pending claim defines merely an obvious variation of the patented claim.” In re Goodman, 11 F.3d at" }, { "docid": "9571891", "title": "", "text": "in In re Braat, that the proper rule was that “when a later filed improvement patent issues before an earlier filed basic invention, a double patenting rejection is only proper against the claims to the basic invention if the improvement is not patent-ably distinct from the basic invention,” i.e., a two-way test, for which Phillips relied on 3 D. Chisum, Patents, § 9.03[2][c] (1990). Id. The court noted, that the rationale for such a rule was that “an applicant (or applicants) who files applications for basic and improvement patents should not be penalized by the rate of progress of the applications through the PTO, a matter over which the applicant does not have complete control,” and noted further that, “[i]n this situation, the order of issuance is, in effect, ignored, and the relevant determination becomes whether the improvement is patentably distinct from the generic invention,” again relying on Chisum as the authority for both observations. Id. , The court in In re Braat took issue with the contention that the Dil invention was an “improvement” over Braat, but nevertheless held that the “two-way test” applied under the circumstances presented: [W]e agree that the reasoning of [In re Borah, 53 C.C.P.A. 800, 354 F.2d 1009 (1966) ] and Chisum, § 9.03[2][c] is applicable in the present case. Philips could not have included the claims of Dil in the Braat application, for Braat did not invent the subject matter of the Dil claims, i.e., information areas having V-shaped side walls at particular angles of inclination. Nor could Philips have included the claims of Braat in the Dil application, for Dil did not invent the subject matter of the Braat application, i.e., adjacent track segments of different phase depth. Philips filed the Braat and Dil applications so as to maintain proper inventorship, with claims directed to Braat’s “subcombination” invention in the first application and claims directed to both Dil’s “subcombination” invention and to the “combination” invention in the second application. Philips even acknowledged in Dil’s application that part of the combination invention was invented by Braat, not Dil. It is not Philips’ fault" }, { "docid": "23608962", "title": "", "text": "240 (CCPA 1931). In these cases, a “two-way” test is applicable. See Carman, 724 F.2d at 940, 220 USPQ at 487. Under this test, the obviousness-type double patenting rejection is appropriate only if the claims of the two patents cross-read, meaning that “the test is whether the subject matter of the claims of the patent sought to be invalidated would have been obvious from the subject matter of the claims of the other patent, and vice versa.” Id., 724 F.2d 932, 220 USPQ at 487. See also Braat, 937 F.2d at 593,19 USPQ2d at 1292 (explaining two-way test). B In making its double patenting rejection, the Board concluded that all but one of the pending claims of Dembiczak’s utility application would have been merely an obvious variation of the claims of the earlier-issued design patents — the Dembiczak ’023 and ’254 references — in light of the Holiday reference. The remaining claim, dependent claim 49, was judged obvious in light of the combination of the Dembiczak design patents, Holiday, and the Kessler reference. Acknowledging that the two-way test was required by Carman, 724 F.2d at 940, 220 USPQ at 487, the Board concluded that “the design claimed in each of appellants’ design patents does not exclude the features pertaining to the construction and color of the bag, the use of a plastic material for making the bag, the size or thickness of the bag ... or the use of various types of filling material.... The particular details of the facial indicia would have been a matter of design choice as evidenced by the Holiday handbook,” and that therefore, in view of Holiday, the claims of the design patents were obvious variants of the pending utility patent claims. See -Dembiczak, slip op. at 11. We disagree. In order for a design to be unpatentable because of obviousness, there must first be a basic design reference in the prior art, the design characteristics of which are “basically the same as the claimed design.” In re Borden, 90 F.3d 1570, 1574, 39 USPQ2d 1524, 1526 (Fed.Cir.1996); In re Rosen, 673 F.2d 388, 391," }, { "docid": "6957287", "title": "", "text": "like to restate the situation here as we see it in its simplest form, using appellant’s symbolism. He made an invention which we can call ABC + UL, a mechanical combination. He made an improvement on it which consists in adding Y. He did not then proceed to ask for a patent on the improvement of ABC + UL which consists in the addition, of Y, “particularly pointing out and distinctly claiming” the addition of Y to be his invention, as 35 U.S.C. § 112, 2nd par., would seem to indicate he should do. He conceived his invention to be a new combination he had invented, ABC + UL + Y. This is the situation as to patent claim 5. The situation as to claim 4 is that he says he has invented ABG + UL + YZ. Otherwise stated, he claimed his invention to be the totality of his apparatus as improved, which apparatus contains, of necessity, the basic apparatus as described in his original application and as claimed in the appealed claims. All this occurred, of course, while both applications were pending, the record disclosing the following time sequence : 29 Feb. 1960 first application filed (at bar) 27 June 1960 office action 12 Aug. 1960 second application filed (now patent) 22 Dec. 1960 amend first application 18 Apr. 1961 office action in first application 16 May 1961 reference patent issued 20 July 1961 amend first application 28 Nov. 1961 office action, double patenting rejection 23 Feb. 1962 amend first application 5 April 1962 FINAL rejection 17 July 1962 amend first application 3 Oct. 1962 appeal to Board of Appeals 2 Jan. 1964 Board’s 1st decision 5 Feb. 1964 Board denied rehearing 2 Mar. 1964 appeal to CCPA With respect to these dates we note the fact that but for the rejections that have been reversed by the board and the double patenting rejection now before us, a patent on the application at bar could have issued in 1961, within a few months of the date of the Borah patent, and there would have been very little timewise" }, { "docid": "23608961", "title": "", "text": "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 240 (CCPA 1931). In these cases, a “two-way” test is applicable. See Carman, 724 F.2d at 940, 220 USPQ at 487. Under this test, the obviousness-type double patenting rejection is appropriate only if the claims of the two patents cross-read, meaning that “the test is whether the subject matter of the claims of the patent sought to be invalidated would have been obvious from the subject matter of the claims of the other patent, and vice versa.” Id., 724 F.2d 932, 220 USPQ at 487. See also Braat, 937 F.2d at 593,19 USPQ2d at 1292 (explaining two-way test). B In making its double patenting rejection, the Board concluded that all but one of the pending claims of Dembiczak’s utility application would have been merely an obvious variation of the claims of the earlier-issued design patents — the Dembiczak ’023 and ’254 references — in light of the Holiday reference. The remaining claim, dependent claim 49, was judged obvious in light of the combination of the Dembiczak design patents, Holiday, and the Kessler reference. Acknowledging that" }, { "docid": "9571844", "title": "", "text": "denial of rehearing and rehearing en banc, 204 F.3d 1359 (Fed.Cir. Feb.23, 2000), cert. denied, 531 U.S. 816, 121 S.Ct. 54, 148 L.Ed.2d 22 (2000), as is the determination of whether a “one-way” or “two-way” test of double patenting is appropriate. See In re Emert, 124 F.3d 1458, 1460 (Fed.Cir.1997). Nevertheless, the legal question of which test of double patenting applies may depend upon specific findings of fact. See id. Therefore, this aspect, at least, of Donaldson’s motion for summary judgment regarding double patenting may be subject to genuine issues of material fact, notwithstanding that the ultimate questions of what test applies and whether there was double patenting are questions of law. Moreover, other legal determinations in the double-patenting analysis may also be subject to genuine issues of material fact. Cf. Eli Lilly, 251 F.3d at 971-72 (noting that there were no genuine issues of material fact as to whether fluoxetine hydrochloride inhibits the uptake of serotonin in animals, or that human is a species of the animal genus, such that the double-patenting issue in that case was “solely a matter of law”). I). Arguments Of The Parties In support of its motion for summary judgment, Donaldson contends that, in Eli Lilly & Co. v. Barr Laboratories, Inc., 251 F.3d 955 (Fed.Cir.2001), cert. denied, 534 U.S. 1109, 122 S.Ct. 913, 151 L.Ed.2d 879 (2002), the Federal Circuit Court of Appeals “introduced a new application of the rule of obviousness-type double patenting.” Specifically, Donaldson contends that, in Eli Lilly, the court held that if a later-filed, but earlier-issued patent anticipates or renders obvious an earlier-filed, but later-issued patent, and the same party holds the rights to both patents, the earlier-filed patent is invalid. Donaldson contends that, before the Eli Lilly decision, the rule was, “ ‘When a basic patent is filed before but issued after an improvement patent, the order of issuance is disregarded and the later-issuing patent is upheld if the improvement patent is not obvious in light of the basic patent.’ ” Donaldson’s Brief in Support of Motion for Summary Judgment Based on New Federal Circuit Case Law Re:" }, { "docid": "13474118", "title": "", "text": "the novel esthetic effect resides is the identical feature which produces the novel function so that a structure embodying the mechanical invention would of necessity embody the design, and vice versa. We agree with the above analysis that double patenting will be found in a design/utility situation if the two patents cross-read. Further, the precedent of this court supports a broader test of double patenting, encompassing the double patenting of obvious variations as well as of the same invention. However, rather than focusing on the point of novelty, we wish to clarify that double patenting is determined by analysis of the claims as a whole. Double patenting, as applied between a design and a utility patent, is a judicially created doctrine based purely on the public policy of preventing extension of the term of a patent, even where an express statutory basis for the doctrine is lacking. Double patenting may be found in a design/utility setting “irrespective of whether the patent relied on in the rejection and the application [or patent] on appeal involve the same invention, or whether they involve inventions which are obvious variations of one another.” In the former situation (“same invention”-type) the test is whether the design and the utility patent claim the same subject matter. In the latter situation (“obviousness”-type), the test is whether the subject matter of the claims of the patent sought to be invalidated would have been obvious from the subject matter of the claims of the other patent, and vice versa. In considering that question, the disclosure of the “reference” patent may not be used as prior art. In certain situations, however, it may be used to define terms in a claim and to determine whether the embodiment claimed has been modified in an obvious manner. In applying the above tests, there is a heavy burden of proof on one seeking to show double patenting. Double patenting is rare in the context of utility versus design patents. We now turn to examine the facts relating to double patenting in terms of the above guidelines. The ’068 (design) patent claims the visible" }, { "docid": "17535048", "title": "", "text": "right to exclude granted by a patent by allowing a second patent claiming an obvious variant of the same invention to issue to the same owner later. See In re Goodman, 11 F.3d 1046, 1052, 29 USPQ2d 2010, 2015 (Fed.Cir.1993). Obviousness-type double patenting is a question of law reviewed de novo by this court. See id.; see also General Foods v. Studiengesellschaft Kohle mbH, 972 F.2d 1272, 1277, 23 USPQ2d 1839, 1843 (Fed.Cir.1992). Generally, a “one-way” test has been applied to determine obviousness-type double patenting. Under that test, the examiner asks whether the application claims are obvious over the patent claims. In a recent case, with unusual circumstances, however, this court instead applied a “two-way” test. See Braat, 937 F.2d at 592, 19 USPQ2d at 1291-92. Under the two-way test, the examiner also asks whether the patent claims are obvious over the application claims. If not, the application claims later may be allowed. Thus, when the two-way test applies, some claims may be allowed that would have been rejected under the one-way test. One of our predecessor courts, the Court of Customs and Patent Appeals, also at various times applied an analysis similar to that used in Braat to determine obviousness-type double patenting. See In re Borah, 354 F.2d 1009, 1009, 148 USPQ 213, 214 (CCPA 1966); In re Calvert, 97 F.2d 638, 640, 25 C.C.P.A. 1333, 1336 (CCPA 1938). The essential concern was to prevent rejections for obviousness-type double patenting when the applicants filed first for a basic invention and later for an improvement, but, through no fault of the applicants, the PTO decided the applications in reverse order of filing, rejecting the basic application although it would have been allowed if the applications had been decided in the order of their filing. The question of whether the “one-way” test or the “two-way” test applies, the dispositive issue here, is one of law and therefore reviewed by this court without deference. See In re Emert, 124 F.3d 1458, 1460, 44 USPQ2d 1149, 1151 (Fed.Cir.1997). Under the one-way test, if the scope of the application and the patent claims is" } ]

[ { "docid": "22406928", "title": "", "text": "substantial safeguard against the officers’ misrepresentation, unintentional or otherwise, of the witness’ statements and conduct before the grand jury. The witness can call on the grand jurors if need be for their normally unbiased testimony as to what occurred before them.” Although that excerpt is from a dissent on the particular facts of the case, there could be no disagreement as to the accuracy of the description of the grand jury’s historical function. The tendency is for government to use shortcuts in its search for instruments more susceptible to its manipulation than is the historic grand jury. See Hannah v. Larche, 363 U. S. 420, 505 (Douglas, J., dissenting); Jenkins v. McKeithen, 395 U. S. 411. Mr. Justice Marshall, dissenting. I The Court considers United States v. Wade, 388 U. S. 218, 221-223 (1967), and Gilbert v. California, 388 U. S. 263, 265-267 (1967), dispositive of respondent Dionisio’s contention that compelled production of a voice exemplar would violate his Fifth Amendment privilege against compulsory self-incrimination. Respondent Mara also argued below that compelled production of the handwriting and printing exemplars sought from him would violate his Fifth Amendment privilege. I assume the Court would consider Wade and Gilbert to be dispositive of that claim as well. The Court reads those cases as holding that voice and handwriting exemplars may be sought for the exclusive purpose of measuring “the physical properties” of the witness’ voice or handwriting without running afoul of the Fifth Amendment privilege. Ante, at 7. Such identification evidence is not within the purview of the Fifth Amendment, the Court says, for, at least since Schmerber v. California, 384 U. S. 757, 764 (1966), it has been clear that while “the privilege is a bar against compelling 'communications’ or 'testimony,’ . . . compulsion which makes a suspect or accused the source of 'real or physical evidence’ does not violate it.” I was not a Member of this Court when Wade and Gilbert were decided. Had I been, I would have found it most difficult to join those decisions insofar as they dealt with the Fifth Amendment privilege. Since, as" } ]

[ { "docid": "6481744", "title": "", "text": "outside [the Fifth Amendment’s] protection.” As for Fourth Amendment rights, the Supreme Court has recently held that handwriting exemplars taken alone are outside the scope of the Fourth Amendment’s protection because a person has no reasonable expectation of privacy regarding his handwriting. United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), rev’g, 454 F.2d 580 (7th Cir. 1971). See also United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), rev’g in part, aff’g in part, 442 F.2d 276 (7th Cir. 1971). Moreover, there is no suggestion in the record that the exemplars were the fruit of an independently illegal seizure such as that in Davis v. Mississppi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). The appellant’s argument that it was error for the trial court to require that exemplars be in the form of allegedly forged words also has been answered by the Supreme Court and is without merit. In Dionisio, the defendant was ordered by the district court to give a voice exemplar in the exact words of a telephone conversation taped by the Government. The Court found this constitutional, stating: It has long been held that the compelled display of identifiable physical characteristics infringes no interest protected by the privilege against compulsory self-incrimination. “[T]he prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material.” . . . Wade (United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)) and Gilbert definitively refute any contention that the compelled production of the voice ex emplars in this case would violate the Fifth Amendment. The voice recordings were to be used solely to measure the physical properties of the witnesses’ voices, not for the testimonial or communicative content of what was to be said. Id., at 5 of 410 U.S., 93 S.Ct. at 767, quoting Holt v. United States, 218 U.S." }, { "docid": "9998061", "title": "", "text": "reasonable. B. Self-Incrimination The district court certified two issues in connection with Hubanks’ refusal to provide a voice sample. The first is whether Hubanks’ right to remain silent was violated by the trial court’s order to provide the sample. The second is whether the trial court’s jury instructions constituted an impermissible penalty on Hubanks’ right to remain silent. We analyze both of these issues under 28 U.S.C. § 2254(d)(1) to de-terminé whether the Wisconsin Court of Appeals made an unreasonable application of clearly established federal law when it applied the principles from United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Pennsylvania v. Muniz, 496 U.S. 582, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990), to these facts. The Self-Incrimination Clause of the Fifth Amendment provides that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” The Supreme Court has since delineated the scope of this protection as it pertains to voice samples ordered in pre-trial situations. In Wade, the Court observed that “the privilege [against self-incrimination] ‘protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature’.” Wade, 388 U.S. at 221, 87 S.Ct. 1926 (quoting Schmerber v. State of California, 384 U.S. 757, 761, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966)). Therefore, the Court held, compelling a defendant “to utter words purportedly uttered by [an assailant], was not compulsion to utter statements of a ‘testimonial’ nature; he was required to use his voice as an identifying characteristic, not to speak his guilt.” Id. at 222-23, 87 S.Ct. 1926. See also United States v. Dionisio, 410 U.S. 1, 7, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (holding suspects before a grand jury could be ordered to provide voice samples, as they were used “solely to measure the physical properties of the witnesses’ voices, not for the testimonial or communicative content of what was said”). Similarly, in Muniz, a drunk driving suspect was ordered upon arrest to provide a voice sample, which was videotaped and" }, { "docid": "15262560", "title": "", "text": "384 U.S. 757, 763-764, 86 S.Ct. 1826, 1833, 16 L.Ed.2d 908. One’s voice and handwriting are, of course, means of communication. It by no means follows, however, that every compulsion of an accused to use his voice or write compels a communication within the cover of the privilege. A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection. United States v. Wade, [388 U.S. 218] at 222-223, 87 S.Ct. [1926] at 1929-1930 [18 L.Ed.2d 1149]. 388 U.S. at 266-267, 87 S.Ct. at 1953. Thereafter in United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), in a case involving voice exemplars, the same Court noted: Wade and Gilbert definitively refute any contention that the compelled production of the voice exemplars in this case would violate the Fifth Amendment. The voice recordings were to be used solely to measure the physical properties of the witnesses’ voices, not for the testimonial or communicative content of what was to be said. 410 U.S. at 7, 93 S.Ct. at 768. And in the companion case of United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), the Court, in the case of a potential defendant who was directed by a subpoena to produce handwriting and printing exemplars, held that: We have held today in Dionisio, that a grand jury subpoena is not a “seizure” within the meaning of the Fourth Amendment and, further, that that Amendment is not violated by a grand jury directive compelling production of “physical characteristics” that are “constantly exposed to the public.” Supra, [410 U.S.] at 9-10, 93 S.Ct., at 769. Handwriting, like speech, is repeatedly shown to the public, and there is no more expectation of privacy in the physical characteristics of a person’s script than there is in the tone of his voice. See United States v. Doe (Schwartz), 2 Cir., 457 F.2d 895, 898-899; Bradford v. United States, 5 Cir., 413 F.2d 467, 471-472; cf. Gilbert v. California, 388 U.S. 263, 266-267," }, { "docid": "18926600", "title": "", "text": "surroundings. Moreover, a polygraph does not constitute a search within the meaning of the Fourth Amendment. While “penetration] beneath the skin,” Skinner, 489 U.S. at 616, 109 S.Ct. at 1412-13, to extract inorganic material, Winston v. Lee, 470 U.S. 753, 760, 105 S.Ct. 1611, 1616, 84 L.Ed.2d 662 (1985) (bullet), bodily fluid, Skinner, 489 U.S. at 616-17, 109 S.Ct. at 1412-13 (urine); Schmerber v. California, 384 U.S. 757, 769, 86 S.Ct. 1826, 1835, 16 L.Ed.2d 908 (1966) (blood), or “deep lung” breath, Skinner, 489 U.S. at 616, 109 S.Ct. at 1412-13, has been held to be a search within the meaning of the Fourth Amendment, the Supreme Court also has held that involuntary production of recorded voice samples is not a search because there is no reasonable expectation of privacy in the “physical characteristics of a person’s voice, its tone and manner” or in “his facial characteristics” during speech. United States v. Dionisio, 410 U.S. 1, 14, 93 S.Ct. 764, 771-72, 85 L.Ed.2d 67 (1973). The same is true of handwriting samples. United States v. Mara, 410 U.S. 19, 20-22, 93 S.Ct. 774, 775-76, 35 L.Ed.2d 99 (1973). Similarly, the taking of a fingerprint is not a search, Dionisio, 410 U.S. at 15, 93 S.Ct. at 772, even though it involves touching and pressing, and reveals physiological traits too minute to be considered exposed to public view in any meaningful sense. Id. Further, a dental examination to see if a tooth is missing is not a search, even though it involved an intrusion into a body cavity to identify a disfiguring physical feature that most people would tend to conceal. United States v. Holland, 378 F.Supp. 144, 154 (E.D.Pa.), aff'd, 506 F.2d 1053 (3d Cir.1974), cert. denied, 420 U.S. 994, 95 S.Ct. 1433, 43 L.Ed.2d 676 (1975). The incidental contact involved in attaching polygraph equipment and the rather innocuous readings of heart rate, respiration and perspiration changes are hardly more intrusive than a dental examination. See United States v. Haynes, 24 C.M.R. 881 (AFBR 1957) (“If there is anything hidden in the mind of the person subjected to such an" }, { "docid": "15262563", "title": "", "text": "upheld, the “primary assumption” was that a summoned party must “give what testimony one is capable of giving” absent an exemption “grounded in a substantial individual interest which has been found, through centuries of experience, to outweigh the public interest in the search for truth.” Ibid. One application of this broad duty to provide relevant evidence has been the recognition, since early times, of an obligation to provide certain forms of nontes-timonial physical evidence.7 In Holt v. United States, 218 U.S. 245, 252-253, 31 S.Ct. 2, 6, 54 L.Ed. 1021 (1910) (Holmes, J.), the Court found that the common-law evidentiary duty permitted the compulsion of various forms of physical evidence. In Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908 (1966), this Court observed that traditionally witnesses could be compelled, in both state and federal courts, to submit to “fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.” See also United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). In Gilbert v. California, 388 U.S. 263, 266-267, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178 (1967), handwriting was held, “like the . .. body itself” to be an “identifying physical characteristic,” subject to production. In United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), and United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), this Court again confirmed that handwriting is in the nature of physical evidence which can be compelled by a grand jury in the exercise of its subpoena power. See also United States v. Mullaney, 32 F. 370 (CC Mo.1887). % ■%. sf: s{: % Nor is there any constitutional privilege of the taxpayer or other parties that is violated by this construction. Compulsion of handwriting exemplars is neither a search or seizure subject to Fourth Amendment protections, United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), nor testimonial evidence protected by the Fifth" }, { "docid": "355616", "title": "", "text": "States v. Bohle, supra, 445 F.2d at 66-67; United States v. Albright, supra, 388 F.2d at 725. We rely upon none of these rationales. The second of them has been categorically rejected, and the last cast in grave doubt, by the Supreme Court’s decision in Estelle v. Smith, supra. There the State urged, as the Ninth Circuit in Handy had held, that Smith’s communications to the court-appointed psychiatrist during an examination limited to competency to stand trial were nontestimonial in character, and specifically sought support by way of analogy to the Court’s decisions in United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (voice exemplar), Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) (handwriting exemplar), United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (lineup), and Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (blood sample). The Court dismissed the argument out of hand. The psychiatrist’s prognosis had been based on statements made to him by respondent Smith, and he had related the “substance” of these statements; this was sufficient, the Court said, to implicate directly the Fifth Amendment. The State also contended that “incrimination is complete once guilt has been adjudicated,” 451 U.S. at 462, 101 S.Ct. at 1872, and therefore that the Fifth Amendment did not prohibit introduction of Smith’s statements at the sentencing phase of the bifurcated trial. This is similar (though not identical) to the reasoning set forth in Whitlock, that no Fifth Amendment problem is presented as long as the statements are admitted on the question not of guilt, but of sanity — the dichotomy suggested by 18 U.S.C. § 4244 and Fed.R.Crim.P. 12.2(c). This argument too was rejected, the Court reiterating what it said in In re Gault, 387 U.S. 1, 49, 87 S.Ct. 1428, 1455, 18 L.Ed.2d 527 (1967): “the availability of the [Fifth Amendment] privilege does not turn upon the type of proceeding in which its protection is invoked, but upon the nature of the statement or admission and the exposure which" }, { "docid": "2783977", "title": "", "text": "the privilege against self-incrimination has never been adopted by this court or the Supreme Court. Such an exception is, moreover, inconsistent with the Supreme Court’s recent treatment of the privilege. The Supreme Court’s modern treatment of the privilege against self-incrimination commences with Justice Brennan’s opinion in Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 1830, 16 L.Ed.2d 908 (1966), in which, in contrast with earlier cases such as Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), the Court focused upon the distinction between evidence of acts which are noncommunicative, and evidence of acts which, by their nature, require the direct manifestations of an individual’s thoughts. Schmerber v. California recognized that compelled production of blood samples did not require disclosure of the mental process of the person from whom the sample was, taken. Schmerber, 384 U.S. at 765, 86 S.Ct. at 1832. The Court has applied the same principle to permit a defendant’s compelled participation in a lineup, United States v. Wade, 388 U.S. 218, 221-23, 87 S.Ct. 1926, 1929-30, 18 L.Ed.2d 1149 (1967), and the compelled production of handwrit ing samples, Gilbert v. California, 388 U.S. 263, 265-67, 87 S.Ct. 1951, 1952-53, 18 L.Ed.2d 1178 (1967), and voice exemplars, United States v. Dionisio, 410 U.S. 1, 5-7, 93 S.Ct. 764, 767-68, 35 L.Ed.2d 67 (1973). In each case the Court noted that the evidence obtained was devoid of testimonial significance. Once the Court recognized that the privilege against self-incrimination was concerned only with the compelled disclosure of thought processes, it was inevitable that earlier holdings such as Boyd v. United States, supra, 116 U.S. 616, 6 S.Ct. at 524, applying the privilege to the contents of records which were voluntarily created, would be reconsidered. That reconsideration occurred in Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), holding that the compelled production from attorneys of documents which had been prepared either by their clients or for their clients by accountants did not implicate the clients’ privilege against self-incrimination. As the Court explained, [T]he Fifth Amendment does not" }, { "docid": "15262559", "title": "", "text": "risk of a possible indictment against her. In view of the relevance and materiality of the matter sought, the Government’s application is clearly made in good faith, is not part of a general fishing expedition and is not made to harass the movants herein. Mr. and Mrs. McKeon nonetheless contend that the requested exemplars will not be admissible at the trial and production of the same will require “testimony” from Mrs. McKeon in violation of her marital privilege. The Supreme Court, however, has indicated otherwise. In Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), that Court held: First. The taking of the exemplars did not violate petitioner’s Fifth Amendment privilege against self-incrimination. The privilege reaches only compulsion of “an accused’s communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one’s papers,” and not* “compulsion which makes a suspect or accused the source of ‘real or physical evidence’ * * Sehmerber v. State of California, 384 U.S. 757, 763-764, 86 S.Ct. 1826, 1833, 16 L.Ed.2d 908. One’s voice and handwriting are, of course, means of communication. It by no means follows, however, that every compulsion of an accused to use his voice or write compels a communication within the cover of the privilege. A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection. United States v. Wade, [388 U.S. 218] at 222-223, 87 S.Ct. [1926] at 1929-1930 [18 L.Ed.2d 1149]. 388 U.S. at 266-267, 87 S.Ct. at 1953. Thereafter in United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), in a case involving voice exemplars, the same Court noted: Wade and Gilbert definitively refute any contention that the compelled production of the voice exemplars in this case would violate the Fifth Amendment. The voice recordings were to be used solely to measure the physical properties of the witnesses’ voices, not for the testimonial or communicative content of what" }, { "docid": "355615", "title": "", "text": "at 48; Battle v. Cameron, supra, 260 F.Supp. at 806. A Second Circuit case, again factually quite similar to the one here, United States v. Baird, supra, in effect combined the first two theories. It disapproved the notion of a naked “waiver,” but found that the defendant’s implicit reliance upon the theory that statements made in psychiatric examinations are “real or physical evidence” in order to have his expert’s testimony received despite the hearsay rule, created an estoppel against objection to the Government’s reliance upon the same theory to overcome the Fifth Amendment bar. 414 F.2d at 709. See also United States v. Weiser, supra, 428 F.2d at 936. Finally, in a fourth category of cases, the Fifth Amendment claim has been rejected in whole or in part because of a belief that the privilege against self-incrimination narrowly reaches only statements introduced to show that the defendant actually committed the offense in question, but not statements brought in on the issue of sanity. See, e.g., United States v. Whitlock, supra, 663 F.2d at 1107; United States v. Bohle, supra, 445 F.2d at 66-67; United States v. Albright, supra, 388 F.2d at 725. We rely upon none of these rationales. The second of them has been categorically rejected, and the last cast in grave doubt, by the Supreme Court’s decision in Estelle v. Smith, supra. There the State urged, as the Ninth Circuit in Handy had held, that Smith’s communications to the court-appointed psychiatrist during an examination limited to competency to stand trial were nontestimonial in character, and specifically sought support by way of analogy to the Court’s decisions in United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (voice exemplar), Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) (handwriting exemplar), United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (lineup), and Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (blood sample). The Court dismissed the argument out of hand. The psychiatrist’s prognosis had been based on statements made to him" }, { "docid": "3330071", "title": "", "text": "advised he has a right to remain silent. If the Defendant indicates that he wishes to exercise that right, he may not be questioned' by the psychiatrist for the purpose of determining dangerousness.” Smith v. Estelle, 445 F.Supp. 647, 664 (N.D.Tex.1977). Before we decide whether such warnings are required, however, we must consider the logically prior issue of whether Smith even had a right to refuse to be examined by Dr. Grigson. Ordinarily there would be no question; under the fifth amendment a criminal defendant of course cannot be forced to discuss his alleged crime with anyone who is able to use his statements as evidence against him at his trial. But the state insists that when the defendant is facing jury deciding whether to impose a death sentence, this rule does not apply, at least so long as the interrogator is a psychiatrist. The state argues first that the evidence Smith gave Grigson is not “testimonial” and therefore not within the fifth amendment privilege. See Livingston v. State, 542 S.W.2d 655 (Tex.Cr.App.), cert. denied 431 U.S. 933, 97 S.Ct. 2642, 53 L.Ed.2d 250 (1977). The Supreme Court has held that a criminal defendant may be compelled to wear a piece of clothing in order to show that it fits him, Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910), to give a blood sample, Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), or a handwriting, Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), or voice exemplar, United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), or to speak so that a witness may hear his voice quality or tone, United States v. Wade, 388 U.S. 218, 222-23, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). In these cases, the Court said, evidence given by the defendant was not “rélat[ed] to some communicative act,” Schmerber v. California, 384 U.S. at 765, 86 S.Ct. 1826, and was not “used . . . for the testimonial or communicative content of what was to" }, { "docid": "12266090", "title": "", "text": "person to try on a blouse worn by the perpetrator to establish whether it fit the defendant, Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910), or to give blood samples, Schmerber v. California, 384 U.S. 757, 764-65, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), voice samples, United States v. Wade, 388 U.S. 218, 222-23, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), or handwriting samples, Gilbert v. California, 388 U.S. 263, 266-67, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). They do not rely on anything like the “foregone conclusion” rationale; instead, they find that such acts are not testimonial because they fit into the category of “compulsion which makes a suspect or accused the source of ‘real or physical evidence.’” Schmerber, 384 U.S. at 764, 86 S.Ct. 1826. Nor can these eases be recharacterized as ones where the prosecutor’s grasp of the information obtained was a foregone conclusion. Of course it is true that, for example, it is typically not much to admit that one can speak. But in giving a voice sample, one also admits that one’s voice has various characteristic idiosyncrasies — a non-obvious and incriminating fact that the law allows the prosecutor to secure by compulsion. The prosecutor’s and jury’s access to that information is as dependent on the speaker’s compelled implicit admission of ability to speak as their access to the information on documents is dependent on the subpoenaed party’s implicit admission of the documents’ existence. One can, of course, discern a communicative element in the giving of a voice sample: a person commanded to speak implicitly says, “This is the way I sound when I speak.” But that information adds nothing to what a jury learns from its own ears (or from a properly authenticated tape, if that is the way it is done, see, e.g., United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (grand jury subpoena requiring suspects to read transcripts into a recording device is consistent with Fifth Amendment)). Similarly, a person giving a blood sample implicitly says, “This is my blood.”" }, { "docid": "12051475", "title": "", "text": "S.Ct. 1684, 6 L.Ed.2d 1081 (1961), gave impetus to the process of incorporating various provisions of the Bill of Rights into the Fourteenth Amendment, the Court considered whether extraction of a blood specimen infringed on the privilege against self-incrimination or constituted an unreasonable search and seizure. In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), both questions were answered in the negative. In that case a blood specimen had been taken from a driver who had been arrested for drunk driving but who had refused to submit voluntarily to the blood test. That the Supreme Court had adopted Wigmore’s theory of “testimonial compulsion” in interpreting the privilege against self-incrimination became evident in cases like United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (voice exemplars); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) (handwriting exemplars); United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (grand jury subpoenas for voice exemplars), and United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973) (grand jury subpoenas for handwriting exemplars). Under this view, words or conduct which lack testimonial characteristics are not protected by the Fifth Amendment. Cf. Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910); 8 Wigmore, Evidence § 2263 (McNaughton rev. 1961). This Court has rejected efforts to utilize the same theory of “testimonial compulsion” as an aid in interpreting the intent of Congress regarding Article 31 of the Uniform Code of Military Justice. Now, in the face not only of the Supreme Court’s opinions but also of a mounting tide of state court precedents, the question requires a new look. Recently we refused to find that a right to counsel existed with respect to handwriting exemplars which a Secret Service agent obtained from a serviceperson who was in confinement at the time. United States v. McDonald, 9 M.J. 81 (C.M.A. 1980). We could not conceive that the right to counsel during custodial interrogation that was made available by Miranda v." }, { "docid": "3330072", "title": "", "text": "431 U.S. 933, 97 S.Ct. 2642, 53 L.Ed.2d 250 (1977). The Supreme Court has held that a criminal defendant may be compelled to wear a piece of clothing in order to show that it fits him, Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910), to give a blood sample, Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), or a handwriting, Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), or voice exemplar, United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), or to speak so that a witness may hear his voice quality or tone, United States v. Wade, 388 U.S. 218, 222-23, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). In these cases, the Court said, evidence given by the defendant was not “rélat[ed] to some communicative act,” Schmerber v. California, 384 U.S. at 765, 86 S.Ct. 1826, and was not “used . . . for the testimonial or communicative content of what was to be said,” United States v. Dionisio, 410 U.S. at 7, 93 S.Ct. at 768. Had Dr. Grigson drawn his conclusion from Smith’s manner or deportment, his attention span or facial expressions, a strong argument might be made that he gathered only evidence like that involved in these cases. If Dr. Grigson had been analyzing only the patterns of the defendant’s speech, his grammar, organization, logical coherence, and similar qualities, the question would be closer but arguably the fifth amendment would still not apply. But as we have said, Dr. Grigson’s diagnosis of Smith rested principally on his conclusion that Smith showed no remorse; obviously Dr. Grigson drew that conclusion from the content of Smith’s statements to him. Indeed, Dr. Grigson testified, on cross-examination, that the most important basis of his diagnosis was the account of the crime which Smith gave him during their interview. App. 142-43. Dr. Grigson accepted that account as accurate and drew his conclusions accordingly, App. 192; he also based his diagnosis on comments Smith made and failed to make while he" }, { "docid": "12265971", "title": "", "text": "does not extend to compelled handwriting exemplar), United States v. Wade, 388 U.S. 218, 222-23, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (privilege does not extend to compelled voice exemplar), and United States v. Dionisio, 410 U.S. 1, 5-6, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (privilege does not extend to compelled voice sample), all rely upon the essential distinction between compulsion which operates upon the mind by forcing the accused to communicate information or testimony, and compulsion which merely requires him to produce his body for inspection. While in each instance the government draws evidentiary inferences as a result of the compulsion, the Fifth Amendment only protects against those inferences which derive from compelled communication. See Pennsylvania v. Muniz, 496 U.S. 582, 593, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990) (though videotape of the defendant exhibiting signs of intoxication does not violate the Fifth Amendment, videotape showing the defendant’s inability to respond to a question about the date of his sixth birthday does); Doe II, 487 U.S. at 211 n. 10, 108 S.Ct. 2341 (describing the Schmer-ber line of eases as distinguishing between “the suspect’s being compelled himself to serve as evidence and the suspect’s being compelled to disclose or communicate information or facts that might serve as or lead to incriminating evidence”); Schmerber, 384 U.S. at 765, 86 S.Ct. 1826 (“Not even a shadow of testimonial compulsion upon or enforced communication by the accused was involved either in the extraction or in the chemieal analysis” of appellant’s blood); Dionisio, 410 U.S. at 5-6, 93 S.Ct. 764 (“It has long been held that the compelled display of identifiable physical characteristics infringes no interest protected by the privilege against compulsory self-incrimination.”). The dissent misreads the letter and logic of Fisher and Doe I because it fails to grasp the significance of the Supreme Court’s distinction between compulsion which uses the body as evidence and that which operates upon the mind by compelling communicative acts. Instead, our colleague attempts to dissect the testimonial and non-testimonial elements of providing blood, voice and handwriting samples. He argues that in giving blood, a person" }, { "docid": "12265970", "title": "", "text": "explained that “the prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material.” Id. at 252-53, 31 S.Ct. 2. Justice Holmes thereby drew a fundamental distinction between government action that extorts communication— such action falls within the umbrella of protection afforded by the Fifth Amendment— and government action that merely utilizes the body of the accused as a form of evidence — that kind of action falls outside the Amendment’s particular orbit. Subsequent cases echo and develop this focus upon the Fifth Amendment as a barrier against compulsion that acts upon, and requires the exercise of an individual’s mental faculties for communication. Schmerber v. California, 384 U.S. 757, 764-65, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (privilege against self-incrimination does not extend to a compelled blood sample), Gilbert v. California, 388 U.S. 263, 265-67, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) (privilege does not extend to compelled handwriting exemplar), United States v. Wade, 388 U.S. 218, 222-23, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (privilege does not extend to compelled voice exemplar), and United States v. Dionisio, 410 U.S. 1, 5-6, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (privilege does not extend to compelled voice sample), all rely upon the essential distinction between compulsion which operates upon the mind by forcing the accused to communicate information or testimony, and compulsion which merely requires him to produce his body for inspection. While in each instance the government draws evidentiary inferences as a result of the compulsion, the Fifth Amendment only protects against those inferences which derive from compelled communication. See Pennsylvania v. Muniz, 496 U.S. 582, 593, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990) (though videotape of the defendant exhibiting signs of intoxication does not violate the Fifth Amendment, videotape showing the defendant’s inability to respond to a question about the date of his sixth birthday does); Doe II, 487 U.S. at 211 n. 10, 108 S.Ct. 2341" }, { "docid": "2669779", "title": "", "text": "of sanity. The adversarial nature of criminal proceedings reflected in the Fifth Amendment requires that the State obtain evidence independently from the defendant. It does not however preclude court ordered psychiatric examination. See Estelle v. Smith, 451 U.S. 454, 465-66, 101 S.Ct. 1866, 1874-1875, 68 L.Ed.2d 359 (1981), and cases cited therein. We discern no significant difference between the compulsion in a court-ordered examination and the subpoena of a psychiatrist who has made an evaluation for the purpose of serving as a possible defense witness. Unlike evidence relating to commission of the alleged acts, evidence of sanity or insanity can only be obtained from the defendant. Cf., Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970) (identity of alibi witness must be disclosed). See also United States v. Euge, 444 U.S. 707, 100 S.Ct. 874, 63 L.Ed.2d 141 (1980) (handwriting exemplar); United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (voice exemplar); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) (handwriting exemplar); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (lineup); Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (blood sample). . No person . .. shall be compelled in any criminal case to be a witness against himself. U.S. Const, amend. V. . We perceive the Fifth and Sixth Amendment privileges to be different expressions of the same concept in this context. . Additionally, in contrast to Fed.R.Evid. 705, Ohio requires an expert witness to disclose the underlying facts on which an opinion is based before giving that opinion: RULE 705. Disclosure of facts or Data Underlying Expert Opinion The expert may testify in terms of opinion or inference and give his reasons therefor after disclosure of the underlying facts or data. The disclosure may be in response to a hypothetical question or otherwise. [Emphasis added.] Thus, it was permissible for the prosecution to have cross-examined the defense-called psychiatrist with respect to inculpatory statements made by the defendant and relied upon by that expert" }, { "docid": "5609731", "title": "", "text": "245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910). It is well founded that handwriting exemplars are not protected by the Fifth Amendment privilege against self-incrimination. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). Schmerber has made it clear that the obtaining of physical evidence from a person involves a potential Fourth Amendment violation at two different levels — the seizure of the person necessary to bring him in contact with government agents, and the subsequent search for and seizure of evidence. As to the seizure of the appellant, we have already found that a valid border search led to the arrest of the appellant. As to the possible violation of the Fourth Amendment at the second level —the subsequent search for and seizure of evidence — the Supreme Court has as recently as last year stated that no violation of the Fourth Amendment is found from compelling execution of handwriting or voice exemplars. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973). Dionisio relied on Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), which held that the Fourth Amendment provides no protection for what “a person knowingly exposes to the public, even in his home or office.” The physical characteristics of a person’s voice or handwriting are constantly exposed to the public, hence no intrusion into a person’s privacy results from the compelled execution of a handwriting exemplar. We find no Fourth or Fifth Amendment violation to exist. IY. The appellant next contends that pursuant to Rule 16(f) of the Federal Rules of Criminal Procedure, the government’s motion to produce was not timely because not made within 10 days after arraignment. Rule 16(f) dealing with time for motions applies only to defendants. In the Matter of Magnus, Mabee & Reynard, Inc., 311 F.2d 12 (2nd Cir. 1962). V. Appellant contends also that the pretrial photographic identification procedure" }, { "docid": "12691132", "title": "", "text": "for his getting into the drivers’s seat of the taxicab. B. We confront a much more difficult issue in determining whether the introduction of the tape was harmless error on the issue of Miller’s insanity defense. The issue is difficult because the state’s uses of Miller’s statements straddle the border between testimonial and non-testimonial uses within the meaning of the fifth amendment. Essentially, the state made two uses of the tape. First, it used the recording to demonstrate to the jury that Miller’s voice did not have a flat effect. The sound of Miller’s voice on the tape tended to rebut the testimony of one of Miller’s psychiatric experts, Dr. Clarence Schilt, who testified that Miller was, in his opinion, schizophrenic. Dr. Schilt acknowledged that he based this diagnosis of schizophrenia largely on the flat effect of Miller’s speech during his examination. If this were the sole use that the state had made of the tape, we might conclude that the admission of the tape was harmless error. The fifth amendment does not prohibit the state from introducing real evidence as to the physical properties of a defendant’s voice. Such evidence is not communicative or testimonial evidence within the meaning of the fifth amendment, United States v. Dionisio, 410 U.S. 1, 5-7, 93 S.Ct. 764, 767-68, 35 L.Ed.2d 67 (1973), just as a blood sample is not communicative evidence, Schmerber v. California, 384 U.S. 757, 764-65, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908 (1966), and the body itself is not testimony, see United States v. Wade, 388 U.S. 218, 222, 87 S.Ct. 1926, 1929, 18 L.Ed.2d 1149 (1967). Nor is the use of such physical properties of the body limited to identification purposes, as was permitted by the Court in Dionisio, 410 U.S. at 5-7, 93 S.Ct. at 767-68 (approving use of voice exemplars for identification). In Schmerber, the Supreme Court approved the use of blood samples for blood-alcohol tests, which are conducted not for the purpose of identification but rather to determine whether the blood has certain properties. A different problem is presented, however, by the state’s use of" }, { "docid": "12051474", "title": "", "text": "be submitted. Cf. United States v. Musguire, 9 U.S.C.M.A. 67, 25 C.M.R. 329 (1958) (blood specimen); United States v. Ruiz, 23 U.S.C.M.A. 181, 48 C.M.R. 797 (1974) (urine specimen). Meanwhile, the Supreme Court took a very different view in applying the protections of the Bill of Rights to the securing by law enforcement officials of body fluids, handwriting samples, and voice exemplars from suspects. In Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957), which was decided before the Supreme Court had begun to incorporate into Fourteenth Amendment “due process” the safeguards of the Fourth and Fifth Amendments, it was held that the extraction of a blood specimen from an unconscious defendant by a doctor in a hospital emergency room did not constitute the shocking conduct that would run afoul of “due process”, as then conceived. In this regard, drawing of blood differed from the stomach pumping condemned in Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). Later, after Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), gave impetus to the process of incorporating various provisions of the Bill of Rights into the Fourteenth Amendment, the Court considered whether extraction of a blood specimen infringed on the privilege against self-incrimination or constituted an unreasonable search and seizure. In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), both questions were answered in the negative. In that case a blood specimen had been taken from a driver who had been arrested for drunk driving but who had refused to submit voluntarily to the blood test. That the Supreme Court had adopted Wigmore’s theory of “testimonial compulsion” in interpreting the privilege against self-incrimination became evident in cases like United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (voice exemplars); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) (handwriting exemplars); United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (grand jury subpoenas for voice exemplars), and United States v. Mara," }, { "docid": "12691133", "title": "", "text": "state from introducing real evidence as to the physical properties of a defendant’s voice. Such evidence is not communicative or testimonial evidence within the meaning of the fifth amendment, United States v. Dionisio, 410 U.S. 1, 5-7, 93 S.Ct. 764, 767-68, 35 L.Ed.2d 67 (1973), just as a blood sample is not communicative evidence, Schmerber v. California, 384 U.S. 757, 764-65, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908 (1966), and the body itself is not testimony, see United States v. Wade, 388 U.S. 218, 222, 87 S.Ct. 1926, 1929, 18 L.Ed.2d 1149 (1967). Nor is the use of such physical properties of the body limited to identification purposes, as was permitted by the Court in Dionisio, 410 U.S. at 5-7, 93 S.Ct. at 767-68 (approving use of voice exemplars for identification). In Schmerber, the Supreme Court approved the use of blood samples for blood-alcohol tests, which are conducted not for the purpose of identification but rather to determine whether the blood has certain properties. A different problem is presented, however, by the state’s use of the contents of Miller’s taped statements to cross-examine Dr. Schilt on his diagnosis of schizophrenia and to elicit the opinion of the state’s expert witness, Dr. Mordecai Haber. On cross-examination of Dr. Schilt, the prose.cutor formulated a long hypothetical question which referred to actual occurrences on the day of Alexandra Todd’s murder as well as to the chronology of events and explanation of Miller’s movements given by Miller to Schmirler and Morse. The prosecutor pointed out several inconsistencies between the actual events and Miller’s version of the events (including Miller’s claimed inability to remember that he had purchased a fishing knife and to remember what had happened after he changed taxis) and asked Dr. Schilt: Would it not be strange, if in his narration as I described for you, the interview he gave, the tape, for our hypothetical man to say to the law enforcement officers, if his description is consistent as to what occurred that day fits with what other witnesses said happened, then if it gets inconsistent or fails to bring out the" } ]

[ { "docid": "1940641", "title": "", "text": "Confrontation Clause guarantees the right to cross-examine witnesses, “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, 678-79, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986). The court excluded this line of questioning because it was not relevant, or, if relevant, only marginally so. I Trial Tr. at 83. It was already conceded, and accepted by the court, that there was no medical substantiation of abuse, and that neither N.B. nor any of the children had a sexually transmitted disease. We find that it was within the court’s discretion to exclude this testimony as irrelevant to the question of whether the alleged abuse occurred, because any point to which the testimony could go had already been established. C.Sufficiency of the Evidence Finally, defendant argues that the evidence was insufficient to convict him for the abuse of S.B. and A.B. We sustain a conviction if “any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Further, we must sustain “if there is substantial evidence, taking the view most favorable to the Government, to support it.” United States v. Possick, 849 F.2d 332, 335 (8th Cir.1988) (quoting Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942)). Defendant argues that the court could not reasonably simultaneously acquit on counts III and VI of the information and find the defendant guilty on count I. We disagree. The counts involved separate incidences of abuse, and the court could reasonably find that A.B. was credible, and the evidence convincing, regarding the incident underlying count I, but find insufficient evidence regarding the incidences underlying counts III and VI. A.B. consistently reported, from her early meetings with social workers to her testimony at trial, that the" } ]

[ { "docid": "3673910", "title": "", "text": "no constitutional violation, we will not find an abuse of the trial court’s discretion absent “a showing that the limitations were clearly prejudicial.” United States v. Skelton, 514 F.3d 433, 438 (5th Cir.2008) (citation omitted). The Confrontation Clause guarantees a defendant’s right to cross-examine his accusers. Jimenez, 464 F.3d at 559. The right is not unlimited. Id. What is required is that defense counsel be “permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” United States v. Hitt, 473 F.3d 146, 156 (5th Cir.2006) (citation omitted). The district court has discretion to place reasonable limits on “a criminal defendant’s right to cross-examine a witness 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.” Id. (quotation marks and citations omitted). To determine if a Sixth Amendment violation has occurred, we inquire into “whether the jury had sufficient information to appraise the bias and motives of the witness.” United States v. Tansley, 986 F.2d 880, 886 (5th Cir.1993). Prior to trial, the government filed a motion in limine seeking to preclude Diaz from introducing testimony regarding his status as an illegal immigrant. The motion specifically targeted Diaz’s proposed voir dire questions, which sought to inquire about prejudices of prospective jurors towards illegal immigrants. During a pretrial hearing, the district court ruled on the motion by allowing Diaz to ask one question during voir dire about bias or animosity towards illegal immigrants or Spanish-speaking individuals. Further, if during trial Diaz’s counsel wanted to elicit testimony about Diaz’s immigration status, he was to approach the bench and seek a final determination as to whether his status was material to the case. Later during the pretrial hearing, Diaz’s counsel again presented arguments about immigration status. He wanted to question government witnesses as to what their investigation revealed about reasons Diaz might have been present at the drug transaction. Counsel assured the district court, “I don’t want to get" }, { "docid": "23364504", "title": "", "text": "exclude evidence for abuse of discretion. United States v. Martin, 369 F.3d 1046, 1058 (8th Cir.2004). The Confrontation Clause of the Sixth Amendment guarantees a defendant’s right to cross-examine witnesses and, through cross examination, to expose the motivation of witnesses in testifying. Delaware v. Van Arsdall, 475 U.S. 673, 678-79, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). The right to cross-examine witnesses, however, is not without limitation, even where the subject matter is bias. Id. at 679, 106 S.Ct. 1431. Trial judges retain “wide latitude” 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.” Id. The ability of the defendant to .achieve through other means the effect that the excluded examination allegedly would have produced is a factor indicating that his right to confrontation was not violated. See United States v. Warfield, 97 F.3d 1014, 1024 (8th Cir.1996); United States v. Crump, 934 F.2d 947, 952-53 (8th Cir.1991). Limitations on a defendant’s opportunity to impeach a witness for bias, moreover, are subject to harmless error analysis. Van Arsdall, 475 U.S. at 684, 106 S.Ct. 1431. We conclude that the trial court’s decision to disallow Drapeau’s cross-examination of Big Eagle on her family connections to law enforcement, while debatable, was not an abuse of discretion. The court reasoned that Big Eagle’s sister was not in a decision-making position in the U.S. Attorney’s Office, and therefore was powerless to influence any decision regarding Big Eagle’s prosecution. The court also excluded evidence that Big Eagle’s sister was married to an FBI agent involved in Drapeau’s arrest on the basis that the FBI lacked authority to decide whether Big-Eagle would have been prosecuted, and that evidence of an FBI connection would thus be minimally probative of Big Eagle’s bias. The court further believed that discussion of Big Eagle’s brother-in-law would inject into the trial irrelevant issues about Drapeau’s desire to cooperate with the FBI agent rather than police officers assigned to the Task Force. These are judgment calls, and we" }, { "docid": "23598544", "title": "", "text": "Ortega to 360 months of imprisonment for each of counts one, two, three, and four, all to run concurrently; and 120 months of imprisonment on count six, also to run concurrently. Ortega now appeals his convictions and sentences. II. Trial Issues A. Scope of Cross-Examination Ortega first argues that the' district court erred by limiting the scope of his cross-examination of eodefendant Larry Acton. Ortega argues that the district court improperly restricted his cross-examination attempts to show bias or a motive to lie on the part of Acton, in violation of Ortega’s right to confrontation. “Absent a clear abuse of discretion and a showing of prejudice, we will not reverse a district court’s ruling limiting cross-examination of a prosecution witness on the basis that it impermissibly infringed [the defendant’s] right of confrontation.” United States v. Stewart, 122 F.3d 625, 627 (8th Cir.1997). The right to cross-examination is secured by the Confrontation Clause of the Sixth Amendment, which guarantees an accused the right “to be confronted with the witnesses against him.” U.S. Const, amend. VI. This constitutional guarantee secures an opportunity for effective cross-examination. Delaware v. Van Arsdall, 475 U.S. 673, 678-79, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). The Supreme Court has “recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.” Davis v. Alaska, 415 U.S. 308, 316-17, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). The defendant’s right to confront witnesses, however, “ ‘does not prevent a trial judge from placing [reasonable] limits on defense counsel’s cross-examination of government witnesses,’ ” and the court has wide latitude to impose such limits. United States v. Brown, 110 F.3d 605, 611 (8th Cir.1997) (quoting United States v. Willis, 997 F.2d 407, 415 (8th Cir.1993), cert. denied, 510 U.S. 1050, 114 S.Ct. 704, 126 L.Ed.2d 670 (1994)). The district court allowed Ortega to extensively cross-examine Acton regarding the terms of his plea agreement but sustained some of the government’s objections. At one point, the Assistant United States Attorney (AUSA) objected on the basis of attorney-client privilege when Ortega’s counsel" }, { "docid": "22843173", "title": "", "text": "cross-examination.” Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986) (quotations omitted); see Kentucky v. Stincer, 482 U.S. 730, 736, 107 S.Ct. 2658, 2662, 96 L.Ed.2d 631 (1987); United States v. Williams, 837 F.2d 1009, 1015 (11th Cir.), cert. denied, 488 U.S. 965, 109 S.Ct. 490, 102 L.Ed.2d 527 (1988). The defendant’s right to cross-examine witnesses is not without limitation. He is entitled only to an opportunity for effective cross-examination, not cross-examination that is effective “ ‘in whatever way, and to whatever extent, the defense might wish.’ ” Stincer, 482 U.S. at 739, 107 S.Ct. at 2664 (quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 294, 88 L.Ed.2d 15 (1985) (per curiam)). “[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on ... cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” Van Arsdall, 475 U.S. at 679, 106 S.Ct. at 1435. Nevertheless, the defendant must be given a “ ‘full and fair opportunity to probe and expose [the] infirmities [in a witness’ testimony] through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness’ testimony.’ ” Williams, 837 F.2d at 1015 (quoting Fensterer, 474 U.S. at 22, 106 S.Ct. at 296). Full cross-examination is particularly critical when the examinee is a chief government witness. See United States v. Garcia, 13 F.3d 1464, 1468 (11th Cir.1994). [19] The district court deprived Diaz of his constitutionally protected opportunity to cross-examine an important government witness when it prohibited counsel from asking Agent Patino any questions about the contents, or even the existence, of the termination document. In particular, the court abused its discretion when it held that the document was immaterial. The question whether the FBI dismissed Diaz as a civilian operative in 1983 lay at the heart of the parties’ factual dispute. If the jury had believed that Diaz never stopped working for the FBI or that he was" }, { "docid": "3522131", "title": "", "text": "discretion in admitting opinion or expert testimony. III. Finally, Brown argues that the district court impermissibly limited his cross-examination of Holland regarding her knowledge of a Minnesota Supreme Court decision, State v. Scales, 518 N.W.2d 587 (Minn.1994). Scales requires law enforcement officers to electronically record custodial interrogation when questioning occurs at a police station, and otherwise where feasible. Id. at 592. Brown contends that he should have been allowed to question Holland about the Scales decision in order to show bias and attack her credibility. The district court refused to allow defénse counsel to question Holland about the Scales decision on the ground that it was a state law which did not apply to a federal proceeding. Brown contends that the court’s refusal to allow this line of questioning violated his right to confront witnesses. Absent a clear abuse of discretion and a showing of prejudice, we will not reverse a district court’s ruling limiting cross-examination of a witness on the basis that it impermissibly infringed on the defendant’s right of confrontation. See United States v. Willis, 997 F.2d 407, 415 (8th Cir.1993), cert. denied, 510 U.S. 1050, 114 S.Ct. 704, 126 L.Ed.2d 670 (1994). “The Confrontation Clause of the Sixth Amendment guarantees to a defendant the opportunity for effective cross-examination of witnesses against him, including inquiry into the witnesses’ motivation and bias.” Id. Nevertheless, “[t]he Confrontation Clause ... does not prevent a trial judge from placing limits on defense counsel’s cross-examination of government witnesses.” Id. The district court retains “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.” Id. (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986)). A critical factor in determining whether a defendant’s right of confrontation has been violated is whether the defendant had other ways to obtain the effect that the excluded examination would have allegedly established. See United States v. Warfield, 97 F.3d 1014," }, { "docid": "23653367", "title": "", "text": "discretion when it refused to permit Corona’s attorney to cross-examine Minneapolis Police Officer Liz Holland regarding her alleged misconduct. Specifically, Officer Holland testified that she interrogated Corona shortly after the final controlled buy. According to Holland, Corona told her that he lived at 3932 Aldrich Avenue South. Corona denies such a statement and contends that he merely used the Aldrich Avenue South address as his mailing address. Officer Holland also testified that Corona told her that he took the controlled buy money from Officer Porras and counted it. Corona denies that he made such a statement. Officer Holland testified that she did not record her interrogation with Corona. She stated that she did not believe that she was required to record his statements. Corona argues that Minnesota law requires police officers to tape-record custodial interrogations. See Minnesota v. Scales, 518 N.W.2d 587 (Minn.1994). During cross-examination of Officer Holland, Corona’s attorney attempted to show that Officer Holland was aware of Minnesota’s tape-recording law and that she committed perjury when she testified that she was not required to record the conversation. The district court prevented defense counsel from inquiring into Officer Holland’s knowledge of the Scales decision. Corona contends that the district court’s limitation of his cross-examination of Officer Holland violates his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution. We review a district court’s decision regarding the scope and substance of cross-examination ■ under an abuse of discretion standard. See Brown, 110 F.3d at 609. The Confrontation Clause of the Sixth Amendment to the United States Constitution guarantees a defendant the right to cross-examine a witness who is testifying against him. See id. at 611. The right to effective cross-examination includes inquiry regarding a witness's bias, motivation, and prejudice. See United States v. Warfield, 97 F.3d 1014, 1024 (8th Cir.1996), cert. denied, 520 U.S. 1110, 117 S.Ct. 1119, 137 L.Ed.2d 319 (1997). The right to effective cross-examination, however, is not limitless, and a district court is accorded wide latitude to impose reasonable limits on defense counsel's cross-examination of a government witness. See id. \"A critical" }, { "docid": "17124276", "title": "", "text": "testimony. We agree with the District Court that the potential for confusion outweighed the probative value associated with the use of this transcript for defense counsel’s stated purposes. We conclude, therefore, that the District Court did not abuse its discretion in refusing to allow defense counsel to use an unofficial transcript of the suppression hearing to impeach Officer Burle’s testimony. Likewise, the District Court did not abuse its discretion in refusing defense counsel’s request to take a five minute recess to cue the suppression hearing tape after each allegedly inconsistent statement made by Officer Burle during his trial testimony. The district court is allowed wide discretion in determining whether the introduction of evidence causes undue delay and waste of time. See United States v. Carr, 67 F.3d 171, 175 (8th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 1285, 134 L.Ed.2d 230 (1996). The District Court did not abuse its discretion in refusing defense counsel’s request to present evidence in this manner. IV. Finally, Cody argues that the District Court’s limitation of her cross-examination of Officers Hines and Burle violated her Sixth Amendment right to confrontation. We disagree. “Absent a clear abuse of discretion and a showing of prejudice, we will not reverse a district court’s ruling limiting cross-examination of a witness on the basis that it impermissibly infringed on the defendant’s right of confrontation.” United States v. Brown, 110 F.3d 605, 611 (8th Cir.1997). Cody was allowed to cross-examine each officer extensively regarding both the investigation that led to her arrest and the circumstances surrounding her ultimate confession. Had defense counsel obtained an official transcript of the suppression hearing, the District Court likely would have permitted defense counsel to utilize that document to impeach the officers with any prior testimony that was inconsistent. The District Court specifically expressed its willingness to allow defense counsel to impeach both officers with the tape recording of the suppression hearing provided the tape was cued to the relevant testimony. In these circumstances, we cannot conclude that the District Court abused its discretion in limiting Cody’s cross-examination, nor can we conclude that Cody’s Sixth" }, { "docid": "23653368", "title": "", "text": "to record the conversation. The district court prevented defense counsel from inquiring into Officer Holland’s knowledge of the Scales decision. Corona contends that the district court’s limitation of his cross-examination of Officer Holland violates his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution. We review a district court’s decision regarding the scope and substance of cross-examination ■ under an abuse of discretion standard. See Brown, 110 F.3d at 609. The Confrontation Clause of the Sixth Amendment to the United States Constitution guarantees a defendant the right to cross-examine a witness who is testifying against him. See id. at 611. The right to effective cross-examination includes inquiry regarding a witness's bias, motivation, and prejudice. See United States v. Warfield, 97 F.3d 1014, 1024 (8th Cir.1996), cert. denied, 520 U.S. 1110, 117 S.Ct. 1119, 137 L.Ed.2d 319 (1997). The right to effective cross-examination, however, is not limitless, and a district court is accorded wide latitude to impose reasonable limits on defense counsel's cross-examination of a government witness. See id. \"A critical factor in determining whether a defendant's right of confrontation has been violated is whether the defendant had other ways to obtain the effect that the excluded examination would have allegedly established.\" Brown, 110 F.3d at 611. In this case, the district court did not abuse its discretion by limiting Corona's cross-examination of Officer Holland. Although Corona's attorney was not allowed to explore Officer Holland's knowledge of the Scales case per Se, the attorney was permitted to ask Officer Holland about her decision not to record the interrogation of Corona. When asked why she believed that she was not required to record the conversation, Officer Holland stated that she was not mandated to record interrogations in federal cases. Defense counsel then inquired further as to the police officer's basis for determining that she was involved in a federal case. The officer responded that she determined that it was a federal case by the quantity of the drugs involved. While the district court did not permit defense counsel to cross-examine Officer Holland about her specific knowledge of" }, { "docid": "9840632", "title": "", "text": "1014, 1017 (8th Cir.1994) (failure of party to object to issue at trial precludes appellate review). Even assuming that Thomas properly preserved this issue, we conclude that the district court properly denied Thomas the opportunity to question Hudspeth about the Missouri state double murder case. It is true that “[t]he Confrontation Clause of the Sixth Amendment guarantees to a defendant the opportunity for effective cross-examination of witnesses against him, including inquiry into the witnesses’ motivation and bias.” United States v. Willis, 997 F.2d 407, 415 (8th Cir.1993), cert. denied, 510 U.S. 1050, 114 S.Ct. 704, 126 L.Ed.2d 670 (1994). The right to examine witnesses under this provision is not without limitation, however. District courts “ ‘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.’” United States v. Juvenile NB, 59 F.3d 771, 778 (8th Cir.1995) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 678-79, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986)). A key factor in determining whether a defendant’s right of confrontation has been violated is whether the defendant had other means at his disposal to obtain the effect that the excluded examination would have allegedly established. United States v. Campbell, 845 F.2d 782, 788 (8th Cir.), cert. denied, 488 U.S. 965, 109 S.Ct. 490, 102 L.Ed.2d 527 (1988). Absent a clear abuse of discretion and a showing of prejudice, we will not reverse a district court’s ruling limiting cross-examination of a prosecution witness on the basis that it impermissibly infringed upon the defendant’s right of confrontation. Willis, 997 F.2d at 415. In this ease, Thomas claims that he wished to question Hudspeth about the details of the Missouri murder case to show the extent of the benefits that Hudspeth received by pleading guilty and cooperating with the government. The district court committed no abuse of discretion in precluding Thomas from pursuing this line of questioning. Hud-speth was simply a witness to the double murders and," }, { "docid": "3522132", "title": "", "text": "v. Willis, 997 F.2d 407, 415 (8th Cir.1993), cert. denied, 510 U.S. 1050, 114 S.Ct. 704, 126 L.Ed.2d 670 (1994). “The Confrontation Clause of the Sixth Amendment guarantees to a defendant the opportunity for effective cross-examination of witnesses against him, including inquiry into the witnesses’ motivation and bias.” Id. Nevertheless, “[t]he Confrontation Clause ... does not prevent a trial judge from placing limits on defense counsel’s cross-examination of government witnesses.” Id. The district court retains “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.” Id. (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986)). A critical factor in determining whether a defendant’s right of confrontation has been violated is whether the defendant had other ways to obtain the effect that the excluded examination would have allegedly established. See United States v. Warfield, 97 F.3d 1014, 1024 (8th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 1119, 137 L.Ed.2d 319 (1997). Here, defense counsel had ample opportunity to discredit Holland’s testimony, even though the court prevented the defense from specifically bringing up the Scales decision. Indeed, Brown’s counsel asked Holland whether she tape-recorded or had Brown sign a written confession. Counsel further asked Holland if anyone else was present when Brown confessed and whether she ordinarily interviewed suspects alone. Counsel asked Holland if she had a tape recorder, where it was located, and how long it would have taken for Holland to get the recorder from her office. Thus, the district court allowed defense counsel to thoroughly cross-examine Holland about her interview with Brown and Brown’s confession. The court did not abuse its discretion by refusing to allow defense counsel to specifically question Holland about the Scales decision. The court did not impermissibly limit Brown’s cross-examination. We affirm Brown’s conviction. . The Honorable Paul A. Magnuson, Chief Judge, United States District Court for the District of Minnesota. . Because Brown alleges" }, { "docid": "23364503", "title": "", "text": "Big Eagle. The jury was instructed that the evidence could be considered only for limited purposes under Rule 404(b), and although Drapeau objected to the admission of the evidence, he did not complain about the specific limiting instruction given to the jury. (Dkt. # 68, Instruction 12; T. Tr. 112-13). We are thus not persuaded that any unfair prejudice outweighed the probative value of the evidence. We discern no abuse of discretion. C. Drapeau argues next that the district court erred in excluding evidence of Big Eagle’s kinship to law enforcement personnel. Drapeau maintains that he should have been allowed to impeach Big Eagle’s credibility by introducing evidence that her sister was an employee of the United States Attorney for the District of South Dakota and married to one of the FBI agents working on the Task Force that arrested Drapeau. The district court excluded this evidence, reasoning that it was wasteful of time, confusing to the jury, and irrelevant under Federal Rules of Evidence 402 and 403. We review the district court’s decision to exclude evidence for abuse of discretion. United States v. Martin, 369 F.3d 1046, 1058 (8th Cir.2004). The Confrontation Clause of the Sixth Amendment guarantees a defendant’s right to cross-examine witnesses and, through cross examination, to expose the motivation of witnesses in testifying. Delaware v. Van Arsdall, 475 U.S. 673, 678-79, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). The right to cross-examine witnesses, however, is not without limitation, even where the subject matter is bias. Id. at 679, 106 S.Ct. 1431. Trial judges retain “wide latitude” 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.” Id. The ability of the defendant to .achieve through other means the effect that the excluded examination allegedly would have produced is a factor indicating that his right to confrontation was not violated. See United States v. Warfield, 97 F.3d 1014, 1024 (8th Cir.1996); United States v. Crump, 934 F.2d 947, 952-53 (8th Cir.1991). Limitations on a" }, { "docid": "23114662", "title": "", "text": "instructions both during Etties and Hopp’s testimony and at the end of the trial, the district court did not abuse its discretion in admitting evidence of the confederates’ guilty pleas. IV. Willis next argues that the district court violated his right to confront the witnesses against him guaranteed by the Sixth Amendment by improperly cutting off his cross-examination of Etties and Howard Legge, one of the officers at First Federal responsible for reviewing Ettles’s actions. The Confrontation Clause of the Sixth Amendment guarantees to a defendant the opportunity for effective cross-examination of witnesses against him, including inquiry into the witnesses’ motivation and bias. Delaware v. Van Arsdall, 475 U.S. 673, 678-79, 106 S.Ct. 1431, 1434-35, 89 L.Ed.2d 674 (1986). The Confrontation Clause, however, does not prevent a trial judge from placing limits on defense counsel’s cross-examination of government witnesses. Id. at 679, 106 S.Ct. at 1435. “On the contrary, 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.” Id.; see also United States v. Klauer, 856 F.2d 1147, 1149 (8th Cir.1988). “A trial court’s decision to limit cross-examination will not be reversed ‘unless there has been a clear abuse of discretion and a showing of prejudice to defendant.’ ” Klauer, 856 F.2d at 1149 (quoting United States v. Lee, 743 F.2d 1240, 1249 (8th Cir.1984)). Willis’s extensive cross-examination •of Etties comprises forty-nine pages of trial transcript. The only limitation on the cross-examination occurred when defense counsel attempted to pin Etties down concerning the dollar amount of kickbacks that he had received from Stuart Swann in the unrelated fraudulent scheme. At that point, the district court sustained the government’s objection as to the dollar amount. The district court did allow defense counsel to elicit testimony from Etties that he had in fact received cash kickbacks from Swann and that he had pled guilty to a charge involving those kickbacks. We fail to see how the district" }, { "docid": "13432342", "title": "", "text": "for his role in the conspiracy. He asserts on appeal that the district court violated his Sixth Amendment right to confrontation by unduly restricting the scope of his cross-examination of government witness James Page. Donald Gardner also contends that the evidence was insufficient to support his conviction and that the district court erred in its determination of the amount of drugs attributable to him. Although it is true that counsel cannot expect a co-defendant’s attorney to protect his client’s rights, the district court did not abuse its discretion in disallowing duplicative cross-examination by Donald Gardner’s attorney. See United States v. Wilson, 787 F.2d 375, 386-87 (8th Cir.) (abuse of discretion determined by “focusfing] on the nexus between the information sought and the purpose of the cross-examination, the relevancy of the information, and the availability of other opportunities to elicit the information”), cert. denied, 479 U.S. 857, 107 S.Ct. 197, 93 L.Ed.2d 129, and cert. denied, 479 U.S. 865, 107 S.Ct. 223, 93 L.Ed.2d 151 (1986). Having reviewed the transcript, we find that Donald Gardner’s right to confrontation was adequately protected by the testimony elicited. The court allowed the attorneys for Donald and Courtney Gardner to pose numerous questions about Page’s status as a career offender, the penalties he faced and his plea agreement, his possible further reduction in sentence based on his testimony, and his desire to. get out of jail as soon as possible. The district court’s refusal to allow more of the same did not deny defense counsel the opportunity to expose facts from which the jury “could appropriately draw inferences relating to the reliability of the witness.” Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347 (1974); see United States v. Campbell, 845 F.2d 782, 787-88 (8th Cir.), cert. denied, 488 U.S. 965, 109 S.Ct. 490, 102 L.Ed.2d 527 (1988). “When considering a sufficiency-of-the-evidence claim, we view the evidence in the light most favorable to the government, giving it the benefit of all favorable inferences.” United States v. Maxwell, 25 F.3d 1389, 1395 (8th Cir.), cert. denied, — U.S. -, 115 S.Ct." }, { "docid": "9840633", "title": "", "text": "673, 678-79, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986)). A key factor in determining whether a defendant’s right of confrontation has been violated is whether the defendant had other means at his disposal to obtain the effect that the excluded examination would have allegedly established. United States v. Campbell, 845 F.2d 782, 788 (8th Cir.), cert. denied, 488 U.S. 965, 109 S.Ct. 490, 102 L.Ed.2d 527 (1988). Absent a clear abuse of discretion and a showing of prejudice, we will not reverse a district court’s ruling limiting cross-examination of a prosecution witness on the basis that it impermissibly infringed upon the defendant’s right of confrontation. Willis, 997 F.2d at 415. In this ease, Thomas claims that he wished to question Hudspeth about the details of the Missouri murder case to show the extent of the benefits that Hudspeth received by pleading guilty and cooperating with the government. The district court committed no abuse of discretion in precluding Thomas from pursuing this line of questioning. Hud-speth was simply a witness to the double murders and, as part of his plea agreement, agreed to assist Missouri state authorities in the prosecution of that case. He was not charged in the murder case. The homicides were clearly collateral matters in this case because Hudspeth, given that he was only a witness to the murders, would have had no reason to fabricate his testimony or to be biased for the government in this case. Thus, inquiry into this area would have been of little, if any, benefit to Thomas, other than to portray Hudspeth as an individual who is around violent crimes. On the other hand, Warfield’s counsel was given ample opportunity to vigorously cross-examine Hudspeth in detail regarding the benefits Hudspeth received by pleading guilty to the robberies at issue in this case and cooperating with the government by providing testimony against his co-conspirators. Counsel for Thomas and Warfield conducted a thorough cross-examination of Hudspeth, consuming almost 45 pages of trial transcript, about Hudspeth’s bias and motive to lie, and his past criminal history. The Appellants also questioned Hudspeth at length about" }, { "docid": "9840631", "title": "", "text": "He argues that he should have been permitted to question Hud-speth about the details of the double murder, so the jury could have received a complete account of the favorable treatment the government provided to Hudspeth as a result of Hudspeth’s guilty plea and cooperation. By receiving this information, the jury would have been able to properly evaluate Hud-speth’s biases and his potential for coloring his testimony in favor of the government. By failing to permit inquiry into this area, Thomas continues, the district court violated his Sixth Amendment right of confrontation. We disagree. We have serious doubts that Thomas preserved this issue for appeal. A review of the transcript indicates that Warfield’s counsel, not Thomas’s counsel, strenuously argued in favor of permitting inquiry into this area and lodged a specific objection when the district court rejected Warfield’s counsel’s argument. At no time did Thomas make any argument, or more importantly, lodge any objection to the district court’s denial of this request. Thomas has therefore waived this issue. See United States v. Brown, 33 F.3d 1014, 1017 (8th Cir.1994) (failure of party to object to issue at trial precludes appellate review). Even assuming that Thomas properly preserved this issue, we conclude that the district court properly denied Thomas the opportunity to question Hudspeth about the Missouri state double murder case. It is true that “[t]he Confrontation Clause of the Sixth Amendment guarantees to a defendant the opportunity for effective cross-examination of witnesses against him, including inquiry into the witnesses’ motivation and bias.” United States v. Willis, 997 F.2d 407, 415 (8th Cir.1993), cert. denied, 510 U.S. 1050, 114 S.Ct. 704, 126 L.Ed.2d 670 (1994). The right to examine witnesses under this provision is not without limitation, however. District courts “ ‘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.’” United States v. Juvenile NB, 59 F.3d 771, 778 (8th Cir.1995) (quoting Delaware v. Van Arsdall, 475 U.S." }, { "docid": "10669666", "title": "", "text": "argue that his defense was impaired by the delay. His “ennui,” without more, is insufficient to demonstrate prejudice. See id. at 740 (“although anxiety and concern are present in every case, this alone does not demonstrate prejudice”; noting that defendant had not shown any “actual prejudice”). Thus, considering the Barker factors and the facts here, we conclude that Walker’s Sixth Amendment speedy-trial right was not violated, and we affirm the denial of his motion to dismiss. C. Limitations on Cross-Examination Shortly before Walker moved for the competency evaluation, the government filed its motions in limine, seeking, as relevant, to preclude Walker from introducing at trial evidence regarding the IA investigation, and to preclude him from relitigating the lawfulness of the traffic stop. The district court granted the motion, reasoning that the IA investigation was only “marginally relevant” and would likely confuse the jury, and that the lawfulness of the traffic stop had already been determined. On appeal, Walker contends that cross-examination regarding the IA investigation was necessary to impeach Golgart’s basis for the traffic stop, and to show that he had a “habit of inaccuracy.” The Confrontation Clause of the Sixth Amendment guarantees a criminal defendant the right to confront the witnesses against him. Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986), However, trial judges retain “wide latitude” to impose reasonable limits on cross-examination based on concerns about, inter alia, confusion of the issues or interrogation that is only marginally relevant. Id. at 679, 106 S.Ct. 1431. In order to establish a Confrontation Clause violation, the defendant must demonstrate that “a reasonable jury might have received a significantly different impression of a witness’s credibility had counsel been allowed to pursue the proposed line of cross-examination.” United States v. Oaks, 606 F.3d 530, 540 (8th Cir. 2010). We will not reverse a district court’s decision to limit cross-examination “unless there has been a clear abuse of discretion and a showing of prejudice to the defendant.” Id In the present case, the IA investigation was minimally relevant for the purpose of impeaching Golgart’s testimony regarding" }, { "docid": "14017592", "title": "", "text": "to see how the method by which Mr. Purkey was introduced to prostitutes more than thirty years before his crime is relevant to explaining why he mistook a teenage schoolgirl for a prostitute, and we therefore uphold the district court’s decision to exclude the testimony. Mr. Purkey also argues that the district court erred by refusing to permit him to cross-examine Michael Speakman regarding Mr. Speakman’s uncharged misconduct while at CCA-Leavenworth. Mr. Purkey wanted to elicit this testimony to demonstrate that a desire to avoid punishment for these uncharged acts might have motivated Mr. Speakman to provide information and testimony for the prosecution. He asserts that this denial deprived him of his sixth amendment right to confront an adverse witness. Mr. Purkey calls our attention to the Supreme Court’s language in Davis v. Alaska, 415 U.S. 308, 316-17, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), which recognizes that “the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.” Id. at 316-17, 94 S.Ct. 1105. But this passage does not suggest that a judge should be prevented from imposing limits of any sort on defense counsel’s inquiry into the potential bias of a prosecution witness. Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). “On the contrary, trial judges retain wide latitude ... 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.” Id. We will not reverse a trial court’s decision to limit cross-examination absent a “clear abuse of discretion and a showing of prejudice to [the] defendant.” United States v. Love, 329 F.3d 981, 984 (8th Cir.2003). Mr. Purkey has failed to demonstrate a violation of the confrontation clause. To do so, he must show that a reasonable jury might have received a different impression of the witness’s credibility had Mr. Purkey’s counsel been permitted to pursue his proposed line of cross-examination. See Van Arsdall, 475 U.S. at 680, 106" }, { "docid": "13791410", "title": "", "text": "distribution of cocaine base. The district court found that Stewart had sold cocaine base in the form of crack cocaine and sentenced Stewart accordingly. Stewart appeals his conviction and his sentence. I. Stewart argues that the district court violated his Sixth Amendment right to confront witnesses against him by preventing him from questioning Staley and Robinson about Robinson’s role in the shooting. The Confrontation Clause of the Sixth Amendment guarantees to Stewart the opportunity for effective cross-examination of witnesses against him, including inquiry into the witnesses’ motivations and biases. See United States v. Warfield, 97 F.3d 1014, 1024 (8th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 1119, 137 L.Ed.2d 319 (1997). The right to examine witnesses under the Confrontation Clause is not without limitation. District courts retain wide latitude under the Confrontation Clause to impose reasonable limits on cross-examination when they have concerns about harassment, prejudice, confusion of the issues, a witness’s safety, or interrogation that is repetitive or only marginally relevant. See id. Absent a clear abuse of discretion and a showing of prejudice, we will not reverse a district court’s ruling limiting cross-examination of a prosecution witness on the basis that it impermissibly infringed Stewart’s right of confrontation. See id. We reject Stewart’s argument that the district court erred in preventing him from cross-examining Staley about Robinson’s involvement in the shooting. Stewart wanted to bring out Robinson’s involvement in the shooting to show his bias and strong motive to cooperate with the police to avoid possible murder charges. Stewart’s right to confront witnesses gives him a right to cross-examine Staley about Staley’s motivation or bias, not Robinson’s bias. Cf. Delaware v. Van Arsdall, 475 U.S. 673, 678-80, 106 S.Ct. 1431, 1434-35, 89 L.Ed.2d 674 (1986) (“[T]he focus of the Confrontation Clause is on individual witnesses.”). Robinson’s bias is irrelevant to Staley’s testimony. Staley testified that he met with Stewart on three occasions to buy crack cocaine. Staley stated that at each meeting Stewart gave him crack cocaine in exchange for money. While Staley testified that Robinson set up the crack sales and was present at all three" }, { "docid": "13791409", "title": "", "text": "cooperating with the police to avoid those charges, and that the jury should hear this evidence so they could understand Robinson’s motive to cooperate with the police. The district court excluded all evidence of Robinson’s involvement in the shooting because it was a collateral matter and because it was inadmissible under Rule 403 of the Federal Rules of Evidence. After the government rested its case against Stewart without calling Robinson as a witness, Stewart attempted to call Robinson to testify about his involvement in the shooting. The district court, however, refused to allow Stewart to ask Robinson in front of the jury about the shooting. Stewart also attempted to call Eli Strother as a witness. Strother invoked his Fifth Amendment privilege against self-incrimination, and stated that he would assert the Fifth Amendment to questions about the case. Stewart asked the district court to grant immunity to Strother so he could testify for Stewart. The district court refused to grant Strother immunity, and he did not testify. The jury found Stewart guilty of three counts of distribution of cocaine base. The district court found that Stewart had sold cocaine base in the form of crack cocaine and sentenced Stewart accordingly. Stewart appeals his conviction and his sentence. I. Stewart argues that the district court violated his Sixth Amendment right to confront witnesses against him by preventing him from questioning Staley and Robinson about Robinson’s role in the shooting. The Confrontation Clause of the Sixth Amendment guarantees to Stewart the opportunity for effective cross-examination of witnesses against him, including inquiry into the witnesses’ motivations and biases. See United States v. Warfield, 97 F.3d 1014, 1024 (8th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 1119, 137 L.Ed.2d 319 (1997). The right to examine witnesses under the Confrontation Clause is not without limitation. District courts retain wide latitude under the Confrontation Clause to impose reasonable limits on cross-examination when they have concerns about harassment, prejudice, confusion of the issues, a witness’s safety, or interrogation that is repetitive or only marginally relevant. See id. Absent a clear abuse of discretion and a showing of" }, { "docid": "10669667", "title": "", "text": "and to show that he had a “habit of inaccuracy.” The Confrontation Clause of the Sixth Amendment guarantees a criminal defendant the right to confront the witnesses against him. Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986), However, trial judges retain “wide latitude” to impose reasonable limits on cross-examination based on concerns about, inter alia, confusion of the issues or interrogation that is only marginally relevant. Id. at 679, 106 S.Ct. 1431. In order to establish a Confrontation Clause violation, the defendant must demonstrate that “a reasonable jury might have received a significantly different impression of a witness’s credibility had counsel been allowed to pursue the proposed line of cross-examination.” United States v. Oaks, 606 F.3d 530, 540 (8th Cir. 2010). We will not reverse a district court’s decision to limit cross-examination “unless there has been a clear abuse of discretion and a showing of prejudice to the defendant.” Id In the present case, the IA investigation was minimally relevant for the purpose of impeaching Golgart’s testimony regarding the basis for the traffic stop, given that the legality of the traffic stop had been determined during the pre-trial suppression proceedings. Cf. United States v. Hall, 171 F.3d 1133, 1146 (8th Cir. 1999) (concluding that district court did not abuse its discretion in limiting cross-examination regarding witnesses’s prior untrue statement where the prior statement was in unrelated case and of only slight relevance). Furthermore, it was not likely that the jury would have received a significantly different impression of Golgart’s credibility in light of his own trial testimony: Golgart acknowledged that, while searching the BMW, he handled the shotgun without wearing latex gloves, in violation of the police department’s policy. Finally, there was a risk that cross-examination regarding the IA investigation would have confused the issues before the jury. It was unclear that the facts involved in this case bore any similarity to the facts ultimately relied on in the resolution of the IA inves tigation, and the ultimate resolution of the investigation was somewhat difficult to explain. Under these circumstances, cross-examination' regarding the" } ]

[ { "docid": "5377816", "title": "", "text": "well-qualified experts could reasonably hypothesize that eating eggs increases the risk of heart disease.” This latter message is patently false and misleading. As the Third Circuit observed in Beneficial Corp. v. FTC, 542 F.2d 611, 617 (1976), cert. denied, 430 U.S. 983, 97 S.Ct. 1679, 52 L.Ed.2d 377 (1977), “[wjhether particular advertising has a tendency to deceive or mislead is obviously an impressionistic determination more closely akin to a finding of fact than to a conclusion of law.” Applying the “substantial evidence” rule, and giving due regard to the FTC’s expertise, we cannot disturb the finding. Moreover, our own finding, if it were our province to make one, would be less charitable to petitioners than that of the FTC. The various scientific studies and the expert opinions based on those studies constitute evidence, not merely in the legal sense, but in the commonly understood sense of that word. That a given expert is not persuaded by the studies does not remove them, or another expert’s contrary opinion, from the category of evidence. After reviewing the record now before us, we find no reason to alter the conclusion stated in our opinion on the interlocutory appeal; NCEN has done more than espouse one side of a genuine controversy . It has made statements denying the existence of scientific evidence which the record clearly shows does exist. These statements are, therefore, false and misleading. 517 F.2d at 489. II. The First Amendment The argument most strongly pressed is that the FTC’s order impinges upon First Amendment guarantees, which, at least since Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975), extend to commercial speech. It is argued that the principles established in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976), prohibit the agency from considering the content of the statement without reference to the state of mind with which it was uttered, and require that a commercial misrepresentation on a controversial public issue be treated in the same manner as it would a libel of" } ]

[ { "docid": "11810428", "title": "", "text": "FTC findings long predates Bose and Peel. In FTC v. Colgate-Palmolive Co., 380 U.S. 374, 385, 85 S.Ct. 1035, 1043, 13 L.Ed.2d 904 (1965), the Supreme Court held that while the words “deceptive advertising” set forth a legal standard that derives its final meaning from judicial construction, an FTC finding is “to be given great weight by reviewing courts” because it “rests so heavily on inference and pragmatic judgment” and in light of the frequency with which the Commission handles these cases. Id. at 385, 85 S.Ct. at 1043. However, Colgate-Palmolive preceded the extension of first amendment protection to commercial speech, see, e.g., Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 770, 96 S.Ct. 1817, 1829, 48 L.Ed.2d 346 (1976), and subsequent cases examining the contours of that right. Bose was a libel case holding that appellate courts have a constitutional responsibility to review de novo a lower court finding of fact that a defamatory statement was made with actual malice. Bose, 466 U.S. at 510-11, 104 S.Ct. at 1965. The Court declared that judges, as expositors of the Constitution, must independently decide whether evidence in the record is sufficient to strip allegedly libelous speech of first amendment protection. The Court, however, explicitly left unresolved the question of whether this higher standard of review extended to commercial speech cases. Id. at 504 n. 22, 104 S.Ct. at 1961 n. 22. Kraft asserts that the Court has since answered that question. Peel held that a state regulation prohibiting attorneys from advertising a specialty or certification violated the first amendment and, significantly, a plurality of four Justices reviewed this issue de novo, Peel, 496 U.S. at 108, 110 S.Ct. at 2291 (citing Bose), while Justice Marshall, writing separately, and providing a fifth vote, apparently did so as well. Id. at 111—117, 110 S.Ct. at 2293-96 (concurring opinion). Thus, Peel arguably extended de novo review to another subcategory of constitutionally protected speech, commercial advertising. Nonetheless, we decline to apply de novo review in this context. For one, the implications of Bose are not as clear as Kraft suggests, see" }, { "docid": "8168302", "title": "", "text": "similar to the safety issue in the case at bar. Nonetheless, the Commission was not required to give the Postal Service decisions preclusive effect. Relitigation of an issue is not precluded even between the original parties when “[tjhere is a clear and convincing need for a new determination of the issue . . . because of the potential impact of the determination on the public interest or the interests of persons not themselves parties to the initial action.” Restatement (Second) of Judgments § 68.-l(e)(i) (Tent. Draft No. 4, 1977). Comment h to this section of the Restatement gives as an example of the § 68.1(e)(i) exception an action by “an agency of government . for the protection ... of a broad segment of the public.” This is such a case. This is not only a proceeding by an agency of government to protect the public from both health risks and false advertising; it deals with a body of knowledge in the fields of medical and pharmacological science that is constantly increasing. The government is not precluded from subsequently relitigating against a new respondent under these circumstances. Cf. FTC v. Raladam Co., 316 U.S. 149, 150-151, 62 S.Ct. 966, 86 L.Ed. 1336 (1942) (allowing the FTC to re-litigate substantially the same issue against the same party where its previous order was denied enforcement because of insufficient evidence in the record); see Montana v. United States, supra, 99 S.Ct. at 976-977; 2 Davis, Administrative Law Treatise § 18.-04 at 571 (1958). IV. Sufficiency of the Evidence. Petitioners assert that the findings on which the Commission based the challenged order are not supported by the evidence in the record. “Whether particular advertising has a tendency to deceive or mislead is obviously an impressionistic determination more closely akin to a finding of fact than to a conclusion of law.” Beneficial Corp. v. FTC, 542 F.2d 611, 617 (3d Cir. 1976), cert. denied, 430 U.S. 983, 97 S.Ct. 1679, 52 L.Ed.2d 377 (1977). Giving due regard to the FTC’s expertise, FTC v. Colgate-Palmolive Co., 380 U.S. 374, 385, 85 S.Ct. 1035, 13 L.Ed.2d 904 (1965)," }, { "docid": "972357", "title": "", "text": "a “reasonable relation to the unlawful practices found to exist.” FTC v. Colgate-Palmolive Co., 380 U.S. 374, 394-95, 85 S.Ct. 1035, 1048, 13 L.Ed.2d 904 (1965); National Lead, 352 U.S. at 429, 77 S.Ct. 502; Carter Products, 268 F.2d at 498. “The propriety of a broad order depends upon the specific circumstances of the case . . . .” Colgate, 380 U.S. at 394, 85 S.Ct. at 1048; see Feitler v. FTC, 201 F.2d 790, 794 (9th Cir.), cert. denied, 346 U.S. 814, 74 S.Ct. 24, 98 L.Ed. 341 (1953). Among the circumstances which should' be considered in evaluating the relation between the order and the unlawful practice are whether the respondents acted in blatant and utter disregard of the law, and whether they had a history of engaging in unfair trade practices. National Lead, 352 U.S. at 429-30, 77 S.Ct. 502; Floersheim v. FTC, 411 F.2d 874, 875 n. 1, 878 (9th Cir. 1969), cert. denied, 396 U.S. 1002, 90 S.Ct. 551, 24 L.Ed.2d 494 (1970); see Joseph A. Kaplan & Sons v. FTC, 121 U.S.App.D.C. 1, 5 n. 8, 347 F.2d 785, 789 n. 8 (1965). Moreover, first amendment considerations dictate that the Commission exercise restraint in formulating remedial orders which may amount to a prior restraint on protected commercial speech. Beneficial Corp. v. FTC, 542 F.2d 611, 619-20 (3d Cir. 1976), cert. denied, 430 U.S. 983, 97 S.Ct. 1679, 52 L.Ed.2d 377 (1977); see Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977); Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). The cease and desist orders issued by the Commission in this case unquestionably burden Standard’s and BBD&O’s advertising capacity. Although it is generally accepted that false commercial advertising may be prohibited, see Virginia State Board of Pharmacy, 425 U.S. at 771 & n. 24, 96 S.Ct. 1817; FTC v. Simeon Management Corp., 532 F.2d 708, 713 (9th Cir. 1976), and cases cited therein, these orders go far beyond elimination of the specific misrepresentations which were made" }, { "docid": "11810427", "title": "", "text": "substitute cheese.” The Commission found that the serious, deliberate nature of the violation, combined with the transferability of the violations to other cheese products, justified a broader order. Kraft filed this petition to set-aside the Commission’s order or, alternatively, to modify its scope. II. Our standard for reviewing FTC findings has been traditionally limited to the highly deferential, substantial evidence test. FTC v. Indiana Fed’n of Dentists, 476 U.S. 447, 454, 106 S.Ct. 2009, 2015, 90 L.Ed.2d 445 (1976); Hospital Corp. of Am. v. FTC, 807 F.2d 1381, 1384 (7th Cir.1986), cert. denied, 481 U.S. 1038, 107 S.Ct. 1975, 95 L.Ed.2d 815 (1987). However, Kraft argues as a threshold matter that two recent Supreme Court decisions, Bose Corp. v. Consumers Union, 466 U.S. 485, 510-11, 104 S.Ct. 1949, 1965, 80 L.Ed.2d 502 (1984), and Peel v. Attorney Registration and Disciplinary Comm’n, 496 U.S. 91, 110 S.Ct. 2281, 110 L.Ed.2d 83 (1990), compel us to review the FTC’s factual findings de novo because they implicate Kraft’s first amendment commercial speech rights. A deferential standard in reviewing FTC findings long predates Bose and Peel. In FTC v. Colgate-Palmolive Co., 380 U.S. 374, 385, 85 S.Ct. 1035, 1043, 13 L.Ed.2d 904 (1965), the Supreme Court held that while the words “deceptive advertising” set forth a legal standard that derives its final meaning from judicial construction, an FTC finding is “to be given great weight by reviewing courts” because it “rests so heavily on inference and pragmatic judgment” and in light of the frequency with which the Commission handles these cases. Id. at 385, 85 S.Ct. at 1043. However, Colgate-Palmolive preceded the extension of first amendment protection to commercial speech, see, e.g., Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 770, 96 S.Ct. 1817, 1829, 48 L.Ed.2d 346 (1976), and subsequent cases examining the contours of that right. Bose was a libel case holding that appellate courts have a constitutional responsibility to review de novo a lower court finding of fact that a defamatory statement was made with actual malice. Bose, 466 U.S. at 510-11, 104 S.Ct. at 1965. The" }, { "docid": "10529437", "title": "", "text": "perceived evils wholly unrelated to the commercial content of that speech. Thus, if the majority of the Court had upheld San Diego’s statute as a permissible regulation of commercial speech, we would be compelled to reverse the district court. However, only a plurality of the Court found that the San Diego ordinance constitutionally regulated commercial speech. The concurrence specifically — and vehemently — disagreed with that conclusion. See Metromedia, 453 U.S. at 536, 101 S.Ct. at 2907 (Brennan, J., concurring). The Court’s judgment rested on the ground that San Diego’s ordinance was an impermissible content-based restriction on noncommercial speech because it only permitted on-site signs with certain types of speech. Me-tromedia, 453 U.S. at 521, 101 S.Ct. at 2899. As the Court has stated that “when no single rationale commands a majority, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judg-men[t] on the narrowest ground,’ ” City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 764 n. 9, 108 S.Ct. 2138, 2148 n. 9, 100 L.Ed.2d 771 (quoting Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 993, 51 L.Ed.2d 260 (1977)), we do not view the plurality dicta in Metromedia as controlling the outcome of this case. . See Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985) (regulation banning the use of illustrations in lawyer advertising and banning statements in such advertisements offering legal advice and information as misleading unconstitutional; regulation requiring disclosure that legal \"fees” and “costs” are distinct financial obligations in retaining a lawyer to avoid misleading public constitutional); Friedman v. Rogers, 440 U.S. 1, 99 S.Ct. 887, 59 L.Ed.2d 100 (1979) (statute prohibiting the advertisement of optometry practices through trade names as misleading constitutional). The Court also ruled many regulations to be unconstitutional in this group. See Peel v. Attorney Registration and Disciplinary Comm'n of Ill., - U.S. -, 110 S.Ct. 2281, 110 L.Ed.2d 83 (1990) (regulation banning lawyer advertisement of certification by the National Board of" }, { "docid": "11810431", "title": "", "text": "its own decisions.”). Moreover, there are important distinctions between the sort of appellate review conducted in Bose and Peel and that done in Colgate-Palmolive and this case. The former involved review of court decisions, and courts generally lack the Commission’s expertise in the field of deceptive advertising. While it could be posited that it is counter-intuitive to grant more deference to the Commission than to courts, Commission findings are well-suited to deferential review because they may require resolution of “exceedingly complex and technical factual issues.” Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 645, 105 S.Ct. 2265, 2279, 85 L.Ed.2d 652 (1985); see also Colgate-Palmolive, 380 U.S. at 385, 85 S.Ct. at 1042. In addition, the determination of whether an ad has a tendency to deceive is an impressionistic one more closely akin to a finding of fact than a conclusion of law. National Comm’n on Egg Nutrition v. FTC, 570 F.2d 157, 161 (7th Cir.1977), cert. denied, 439 U.S. 821, 99 S.Ct. 86, 58 L.Ed.2d 113 (1978); Beneficial Corp. v. FTC, 542 F.2d 611, 617 (3d Cir.1976), cert. denied, 430 U.S. 983, 97 S.Ct. 1679, 52 L.Ed.2d 377 (1977). Most important, the restriction challenged in Peel is a completely different animal than the one challenged here. In Peel, the issue was whether a prophylactic regulation applicable to all lawyers, completely prohibiting an entire category of potentially misleading commercial speech, passed constitutional muster. Peel, 496 U.S. at 108-09, 110 S.Ct. at 2292 (plurality); id. at 111, 110 S.Ct. at 2293 (concurrence). Here, by contrast, the issue is whether an individualized FTC cease and desist order, prohibiting a particular set of deceptive ads, passes constitutional muster. See Zauderer, 471 U.S. at 645-46, 105 S.Ct. at 2279 (assessing deceptive advertising under the FTC Act a qualitatively different and more complex task than assessing the validity of a state attorney advertising regulation). We find the restriction at issue in Peel and the one here sufficiently distinct to justify differing levels of appellate review. Accordingly, we decline to review de novo the FTC’s findings and, with the substantial" }, { "docid": "8168303", "title": "", "text": "precluded from subsequently relitigating against a new respondent under these circumstances. Cf. FTC v. Raladam Co., 316 U.S. 149, 150-151, 62 S.Ct. 966, 86 L.Ed. 1336 (1942) (allowing the FTC to re-litigate substantially the same issue against the same party where its previous order was denied enforcement because of insufficient evidence in the record); see Montana v. United States, supra, 99 S.Ct. at 976-977; 2 Davis, Administrative Law Treatise § 18.-04 at 571 (1958). IV. Sufficiency of the Evidence. Petitioners assert that the findings on which the Commission based the challenged order are not supported by the evidence in the record. “Whether particular advertising has a tendency to deceive or mislead is obviously an impressionistic determination more closely akin to a finding of fact than to a conclusion of law.” Beneficial Corp. v. FTC, 542 F.2d 611, 617 (3d Cir. 1976), cert. denied, 430 U.S. 983, 97 S.Ct. 1679, 52 L.Ed.2d 377 (1977). Giving due regard to the FTC’s expertise, FTC v. Colgate-Palmolive Co., 380 U.S. 374, 385, 85 S.Ct. 1035, 13 L.Ed.2d 904 (1965), and National Commission on Egg Nutrition v. FTC, 570 F.2d 157, 161 (7th Cir. 1977), cert. denied, 439 U.S. 821, 99 S.Ct. 86, 58 L.Ed.2d 113 (1978), we must sustain the FTC’s findings if they are supported by substantial evidence on the record viewed as a whole, Universal Camera Corp. v. NLRB, 340 U.S. 474, 491, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Petitioners contend that in some instances the evidence does not support the finding that the representations were made as charged or that material facts were omitted. They also argue that no representation or omission was proved false or misleading. With respect to each representation we consider together the issues of whether it was made and whether it was false. A. False Affirmative Representations. 1. That users of X-ll tablets can lose weight without restricting their accustomed caloric intake and while they continue to eat the foods of their choice. Petitioners attack this finding as inaccurate, arguing that their advertising advises the reader that the tablets function merely as an appetite suppressant which" }, { "docid": "7828941", "title": "", "text": "substantive objections to Part 1(B) are analogous to those made against Part 1(A): that the proscribed claims were never made and would not be misleading even if they were. It should be stressed that all the advertising claims at issue — both those that the Commission found to have been made and those that AHP acknowledges were present — are susceptible of objective measurement and intended to be taken seriously. AHP does not defend its advertisements as lawful “puffing.” A. The Standard of Review of Findings of Deceptiveness 15 U.S.C. § 45(c) directs that “[t]he findings of the Commission as to the facts, if supported by evidence, shall be conclusive.” It is “clear that properly interpreted, the statute requires review by the substantial evidence in the record as a whole standard,” Beneficial Corp. v. FTC, 542 F.2d 611, 616 (3d Cir.1976) (footnote, citing cases, omitted), cert. denied, 430 U.S. 983, 97 S.Ct. 1679, 52 L.Ed.2d 377 (1977). This standard “does not permit the reviewing court to weigh the evidence, but only to determine that there is in the record ‘ “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” ’ ” Steadman v. SEC, 450 U.S. 91, 99, 101 S.Ct. 999, 1006, 67 L.Ed.2d 69 (1981) (quoting previous decisions). This deferential standard with respect to Commission findings of fact applies to the findings here. Although “in the last analysis the words ‘deceptive practices’ set forth a legal standard and they must get their final meaning from judicial construction,” FTC v. Colgate-Palmolive Co., 380 U.S. 374, 385, 85 S.Ct. 1035, 1042, 13 L.Ed.2d 904 (1965), a Commission finding that advertisements are deceptive or tend to mislead “is obviously an impressionistic determination more closely akin to a finding of fact than to a conclusion of law,” Beneficial, supra, 542 F.2d at 617 (applying “substantial evidence” standard to Commission findings that advertisement was deceptive). Colgate-Palmolive explained that the “statutory scheme” created by section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45(a)(1), in particular the generality and flexibility of the statutory standards of illegality, necessarily" }, { "docid": "11810460", "title": "", "text": "S.Ct. at 2292 & n. 17 (plurality); id. at 111-12, 110 S.Ct. at 2293 (concurrence), and added that the burden was on the state, not the advertiser, to come up with a less restrictive regulation. Id. at 109-11, 110 S.Ct. at 2292-93 (plurality) (state must draft a narrower regulation to correct potential consumer and Peel may continue using letterhead in the interim); id. at 117, 110 S.Ct. at 2296 (concurrence). Kraft asserts that its advertisements are only potentially misleading, like the letterhead statement in Peel, because the milk equivalency and imitation superiority claims are true and verifiable, there is no evidence that these claims actually misled consumers, and the advertising medium is not inherently conducive to deception. Alternative remedial measures were readily available to the Commission, such as modifications to the ads or prominent disclosures, and thus, Kraft contends, the order is broader than .reasonably necessary to prevent deception. Moreover, Kraft asserts the order put the onus on it to come up with nonmisleading alternatives in contravention of Peel. We reject Kraft’s argument. To begin with, the Commission determined that the ads were actually misleading, not potentially misleading, thus justifying a total ban on the challenged ads. See Peel, 496 U.S. at 100, 110 S.Ct. at 2287 (“[misleading advertising may be prohibited entirely”). Moreover, even if we were to assume the order bans some potentially misleading speech, it is only constitutionally defective if it is no “broader than reasonably necessary to prevent the [deception].” Id. at 107, 110 S.Ct. at 2291. We conclude that it is sufficiently narrow to pass constitutional muster. Unlike the prophylactic regulation in Peel, which banned an entire category of commercial speech, the restriction at issue here is an administrative cease and desist order directed toward one company’s cheese ads and predicated on a specific finding of past deceptive practices. To reiterate, the FTC’s order does two things: it prohibits the Skimp ads and the Class Picture ads (as currently designed) and it requires Kraft to base future nutrient and calcium claims on reliable scientific evidence. Kraft mischaracterizes the decision as a categorical ban on commercial" }, { "docid": "11810457", "title": "", "text": "slices. Moreover, Kraft's increase in market share came at a time when Singles were priced roughly 40% higher than imitation slices. Thus, the Commission reasonably inferred that the imitation superiority message, as a central theme in the ads, contributed to increased sales and market share. IV. The Commission’s cease and desist order prohibits Kráft from running the Skimp and Class Picture ads, as • well as from advertising any. calcium or nutritional claims not supported by reliable scientific evidence. This order extends not only to the product contained in the deceptive advertisements (Kraft Singles), but to all Kraft cheeses and cheese-related products, which include Cracker Barrel, Velveeta, and Philadelphia Brand Cream Cheese. Kraft contends this order is too broad and must be set-aside or modified because it (1) bans constitutionally protected commercial speech, and (2) is not rationally related to Kraft’s violation of the Act. A. First amendment infirmities arise, according to Kraft, from the sweep of the order: by banning commercial speech that is only potentially -misleading, the order chills some non-deceptive advertising deserving of constitutional protection. Kraft acknowledges that sweeping bans of this variety comport with traditional FTC practice, see, e.g., Cliffdale Assocs., 103 F.T.C. at 165, and have been repeatedly upheld against first amendment challenges in the past. See Bristol-Myers Co., 738 F.2d at 562; Jay Norris, Inc. v. FTC, 598 F.2d 1244, 1251 (2d Cir.), cert. denied, 444 U.S. 980, 100 S.Ct. 481, 62 L.Ed.2d 406 (1979); National Comm’n on Egg Nutrition, 570 F.2d at 163; American Home Prods., 695 F.2d at 688 n. 10; Sears Roebuck & Co. v. FTC, 676 F.2d 385, 399-400 (9th Cir.1982); Litton Indus., Inc. v. FTC, 676 F.2d 364, 373-74 (9th Cir.1982); Brown & Williamson Tobacco Corp., 778 F.2d at 40-41. It nonetheless again relies on the Supreme Court’s recent decision in Peel, 496 U.S. 91, 110 S.Ct. 2281, 110 L.Ed.2d 83 (plurality); id. at 111, 110 S.Ct. at 2293 (concurrence), in attacking the FTC’s order. Peel was sanctioned by the State of Illinois for advertising on his letterhead that he was a certified trial specialist, which violated a state" }, { "docid": "11810458", "title": "", "text": "of constitutional protection. Kraft acknowledges that sweeping bans of this variety comport with traditional FTC practice, see, e.g., Cliffdale Assocs., 103 F.T.C. at 165, and have been repeatedly upheld against first amendment challenges in the past. See Bristol-Myers Co., 738 F.2d at 562; Jay Norris, Inc. v. FTC, 598 F.2d 1244, 1251 (2d Cir.), cert. denied, 444 U.S. 980, 100 S.Ct. 481, 62 L.Ed.2d 406 (1979); National Comm’n on Egg Nutrition, 570 F.2d at 163; American Home Prods., 695 F.2d at 688 n. 10; Sears Roebuck & Co. v. FTC, 676 F.2d 385, 399-400 (9th Cir.1982); Litton Indus., Inc. v. FTC, 676 F.2d 364, 373-74 (9th Cir.1982); Brown & Williamson Tobacco Corp., 778 F.2d at 40-41. It nonetheless again relies on the Supreme Court’s recent decision in Peel, 496 U.S. 91, 110 S.Ct. 2281, 110 L.Ed.2d 83 (plurality); id. at 111, 110 S.Ct. at 2293 (concurrence), in attacking the FTC’s order. Peel was sanctioned by the State of Illinois for advertising on his letterhead that he was a certified trial specialist, which violated a state regulation prohibiting lawyers from advertising any certifications or specialties. The Court first concluded that Peel’s advertisement was only potentially misleading (some consumers might incorrectly assume that this was a state-sanctioned certification), not inherently misleading, compare Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978) (door-to-door solicitation of legal services inherently misleading), and that only the latter can be categorically banned by the state. Peel, 496 U.S. at 108-110 & n. 17, 110 S.Ct. at 2292 & n. 17 (plurality); id. at 111, 110 S.Ct. at 2293 (concurrence). Restrictions on potentially misleading speech, by contrast, can be no “broader than reasonably necessary to prevent the [deception]” and may not categorically prohibit such speech if less restrictive alternatives are available. Id. at 107-108, 110 S.Ct. at 2291 (citing In re R.M.J., 455 U.S. at 203, 102 S.Ct. at 937). Because such alternatives were available to Illinois (e.g., a disclosure requirement), the Court held that this categorical ban violated the first amendment, Peel, 496 U.S. at 108-110 & n. 17, 110" }, { "docid": "11810461", "title": "", "text": "with, the Commission determined that the ads were actually misleading, not potentially misleading, thus justifying a total ban on the challenged ads. See Peel, 496 U.S. at 100, 110 S.Ct. at 2287 (“[misleading advertising may be prohibited entirely”). Moreover, even if we were to assume the order bans some potentially misleading speech, it is only constitutionally defective if it is no “broader than reasonably necessary to prevent the [deception].” Id. at 107, 110 S.Ct. at 2291. We conclude that it is sufficiently narrow to pass constitutional muster. Unlike the prophylactic regulation in Peel, which banned an entire category of commercial speech, the restriction at issue here is an administrative cease and desist order directed toward one company’s cheese ads and predicated on a specific finding of past deceptive practices. To reiterate, the FTC’s order does two things: it prohibits the Skimp ads and the Class Picture ads (as currently designed) and it requires Kraft to base future nutrient and calcium claims on reliable scientific evidence. Kraft mischaracterizes the decision as a categorical ban on commercial speech when in fact it identifies with particularity two nutrient claims that the Commission found actually misleading and prohibits only those claims. It further places on Kraft the (minor) burden of supporting future nutrient claims with reliable data. This leaves Kraft free to use any advertisement it chooses, including the Skimp and Class Picture ads, so long as it either eliminates the elements specifically identified by the FTC as contributing to consumer deception or corrects this inaccurate impression by adding prominent, unambiguous disclosures. See, e.g., Removatron, 884 F.2d at 1497. We note one additional consideration further alleviating first amendment concerns; Kraft, like any party to an FTC order, may seek an advisory opinion from the Commission as to whether any future advertisements comply with its order, 16 C.F.R. § 2.41(d), and this procedure has been specifically cited by courts as one method of reducing advertiser uncertainty. See Colgate-Palmolive, 380 U.S. at 394, 85 S.Ct. at 1047-48; Jay Norris, 598 F.2d at 1251; National Comm’n on Egg Nutrition, 570 F.2d at 163; Fedders Corp. v. FTC," }, { "docid": "5724421", "title": "", "text": "three paragraphs elaborating on the sort of misrepresentations of survey or test results which were prohibited. Litton petitioned for review in this court. ISSUES- 1. Does Litton’s failure to appeal the AU’s opinion and order to the FTC preclude it from doing so in this court? 2. Are the remedial provisions added by the FTC reasonably related to the violations found? DISCUSSION I. Standard of Review. The FTC’s findings of fact, “if supported by evidence, shall be conclusive.” 15 U.S.C. § 45(c). This court requires “ ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” RSR Corp. v. FTC, 602 F.2d 1317, 1320 (9th Cir. 1979), cert. denied, 445 U.S. 927, 100 S.Ct. 1313, 63 L.Ed.2d 760 (1980) (quoting Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026,16 L.Ed.2d 131 (1966)). This test applies regardless whether the FTC agrees with the ALJ. Thiret v. FTC, 512 F.2d 176, 179 (10th Cir. 1975). A reviewing court may examine the FTC's findings more closely where they differ from those of the ALJ. Id.; American Cyanamid Co. v. FTC, 363 F.2d 757, 772-73 (6th Cir. 1966). See also ITT Continental Baking Co. v. FTC, 532 F.2d 207, 219 (2d Cir. 1976). Courts give great weight to the FTC’s legal conclusions in deceptive advertising cases, since such cases “necessarily require ‘inference and pragmatic judgment’.” Resort Car Rental System, Inc. v. FTC, 518 F.2d 962, 963 (9th Cir.), cert. denied, 423 U.S. 827,96 S.Ct. 41, 46 L.Ed.2d 42 (1975) (quoting FTC v. Colgate-Palmolive Co., 380 U.S. 374, 385, 85 S.Ct. 1035, 1042, 13 L.Ed.2d 904 (1965)). The need for deference results “in part from the statutory scheme and in part from the weight of accumulated agency expertise.” Simeon Management Corp. v. FTC, 579 F.2d 1137, 1145 (9th Cir. 1978). See also FTC v. Colgate-Palmolive Co., 380 U.S. at 385, 85 S.Ct. at 1042. The statute’s general language requires the FTC to apply it to particular situations. Determining whether an advertisement is deceptive draws upon the FTC’s familiarity with the public’s expectations. Simeon Management Corp." }, { "docid": "11810459", "title": "", "text": "regulation prohibiting lawyers from advertising any certifications or specialties. The Court first concluded that Peel’s advertisement was only potentially misleading (some consumers might incorrectly assume that this was a state-sanctioned certification), not inherently misleading, compare Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978) (door-to-door solicitation of legal services inherently misleading), and that only the latter can be categorically banned by the state. Peel, 496 U.S. at 108-110 & n. 17, 110 S.Ct. at 2292 & n. 17 (plurality); id. at 111, 110 S.Ct. at 2293 (concurrence). Restrictions on potentially misleading speech, by contrast, can be no “broader than reasonably necessary to prevent the [deception]” and may not categorically prohibit such speech if less restrictive alternatives are available. Id. at 107-108, 110 S.Ct. at 2291 (citing In re R.M.J., 455 U.S. at 203, 102 S.Ct. at 937). Because such alternatives were available to Illinois (e.g., a disclosure requirement), the Court held that this categorical ban violated the first amendment, Peel, 496 U.S. at 108-110 & n. 17, 110 S.Ct. at 2292 & n. 17 (plurality); id. at 111-12, 110 S.Ct. at 2293 (concurrence), and added that the burden was on the state, not the advertiser, to come up with a less restrictive regulation. Id. at 109-11, 110 S.Ct. at 2292-93 (plurality) (state must draft a narrower regulation to correct potential consumer and Peel may continue using letterhead in the interim); id. at 117, 110 S.Ct. at 2296 (concurrence). Kraft asserts that its advertisements are only potentially misleading, like the letterhead statement in Peel, because the milk equivalency and imitation superiority claims are true and verifiable, there is no evidence that these claims actually misled consumers, and the advertising medium is not inherently conducive to deception. Alternative remedial measures were readily available to the Commission, such as modifications to the ads or prominent disclosures, and thus, Kraft contends, the order is broader than .reasonably necessary to prevent deception. Moreover, Kraft asserts the order put the onus on it to come up with nonmisleading alternatives in contravention of Peel. We reject Kraft’s argument. To begin" }, { "docid": "2380541", "title": "", "text": "Mason further argues that even if the state does have a substantial interest, the Bar failed to produce sufficient evidence to justify its restrictions on his speech. Commercial speech, expression inextricably related to the economic interests of the speaker and audience, is undeniably entitled to substantial protection under the First and Fourteenth Amendments of the United States Constitution. See Ibanez v. Florida Dep’t of Bus. & Prof'l Regulation, 512 U.S. 136, 114 S.Ct. 2084, 129 L.Ed.2d 118 (1994); Edenfield v. Fane, 507 U.S. 761, 113 S.Ct. 1792, 123 L.Ed.2d 543 (1993); Peel v. Attorney Registration & Disciplinary Comm’n, 496 U.S. 91, 110 S.Ct. 2281, 110 L.Ed.2d 83 (1990); Board of Trustees v. Fox, 492 U.S. 469, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989); Shapero v. Kentucky Bar Ass’n, 486 U.S. 466, 108 S.Ct. 1916, 100 L.Ed.2d 475 (1988); Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985); Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). Because of the value inherent in truthful, relevant information, a state may ban only false, deceptive, or misleading commercial speech. See Ibanez, 512 U.S. at 142, 114 S.Ct. at 2088. However, a state may restrict commercial speech that is not false, deceptive, or misleading upon a showing that the restriction “directly and materially advances a substantial state interest in a manner no more extensive than necessary to serve that interest.” Id. at 142-43, 114 S.Ct. at 2088-89. Lawyer advertising is a constitutionally protected form of commercial speech, but like any other form of commercial speech, a state may regulate it to protect the public. See Bates v. State Bar of Arizona, 433 U.S. 350, 383-84, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977). This court reviews the constitutionality of a state’s restrictions on lawyer advertising pursuant to the four-part test originally set forth by the Supreme Court in Central Hudson. See 447 U.S. at 563-66, 100" }, { "docid": "7828942", "title": "", "text": "is in the record ‘ “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” ’ ” Steadman v. SEC, 450 U.S. 91, 99, 101 S.Ct. 999, 1006, 67 L.Ed.2d 69 (1981) (quoting previous decisions). This deferential standard with respect to Commission findings of fact applies to the findings here. Although “in the last analysis the words ‘deceptive practices’ set forth a legal standard and they must get their final meaning from judicial construction,” FTC v. Colgate-Palmolive Co., 380 U.S. 374, 385, 85 S.Ct. 1035, 1042, 13 L.Ed.2d 904 (1965), a Commission finding that advertisements are deceptive or tend to mislead “is obviously an impressionistic determination more closely akin to a finding of fact than to a conclusion of law,” Beneficial, supra, 542 F.2d at 617 (applying “substantial evidence” standard to Commission findings that advertisement was deceptive). Colgate-Palmolive explained that the “statutory scheme” created by section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45(a)(1), in particular the generality and flexibility of the statutory standards of illegality, necessarily gives the Commission an influential role in interpreting § 5 and in applying it to the facts of particular cases arising out of unprecedented situations. Moreover, as an administrative agency which deals continually with cases in the area, the Commission is often in a better position than are courts to determine when a practice is “deceptive” within the meaning of the Act. This Court has frequently stated that the Commission’s judgment is to be given great weight by reviewing courts. This admonition is especially true with respect to allegedly deceptive advertising since the finding of a § 5 violation in this field rests so heavily on inference and pragmatic judgment. 380 U.S. at 385, 85 S.Ct. at 1042 (footnote omitted). The Commission’s familiarity with the expectations and beliefs of the public, acquired by long experience, is especially crucial when, as with the advertisements proscribed by Parts 1(B) and III of the Order in this case, “the alleged deception results from an omission of information instead of a statement.” See Simeon Management Corp. v. FTC, 579" }, { "docid": "16910041", "title": "", "text": "has nonetheless observed that there are “doctrinal uncertainties left in the wake of Supreme Court decisions from which the modern commercial speech doctrine has evolved. In particular, these decisions have created some uncertainty as to the degree of protection for commercial advertising that lacks precise informational content.” Bad Frog Brewery, Inc. v. N.Y. State Liquor Auth., 134 F.3d 87, 94 (2d Cir.1998) In the end, we agree with the District Court that, with one exception discussed below, the content-based restrictions in the disputed provisions of § 1200.50(c) regulate commercial speech protected by the First Amendment. In almost every instance, descriptions of the first prong of the Central Hudson test are phrased in the negative, and the only categories that Central Hudson, and its sequellae, clearly excludes from protection are speech that is false, deceptive, or misleading, and speech that concerns unlawful activities. See, e.g., Florida Bar, 515 U.S. at 623-24, 115 S.Ct. 2371 (“[T]he government may freely regulate commercial speech that concerns unlawful activity or is misleading. Commercial speech that falls into neither of those categories ... may be regulated if the government satisfies [Central Hudson’s remaining three prongs].” (citation omitted)); Ibanez v. FI. Dep’t of Bus. & Prof'l Regulation, Bd. of Accountancy, 512 U.S. 136, 142, 114 S.Ct. 2084, 129 L.Ed.2d 118 (1994) (“[O]nly false, deceptive, or misleading commercial speech may be banned”). The Supreme Court has also emphasized that “States may not place an absolute prohibition on certain types of potentially misleading information ... if the information also may be presented in a way that is not deceptive.” In re R.M.J., 455 U.S. 191, 203, 102 S.Ct. 929, 71 L.Ed.2d 64 (1982); see also, e.g., Peel v. Attorney Registration & Disciplinary Comm’n of Ill., 496 U.S. 91, 100-01, 110 S.Ct. 2281, 110 L.Ed.2d 83 (1990); Shapero v. Ky. Bar Ass’n, 486 U.S. 466, 479, 108 S.Ct. 1916, 100 L.Ed.2d 475 (1988); Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626, 644, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985). We conclude from these precedents that the Central Hudson analysis applies to regulations of" }, { "docid": "11810430", "title": "", "text": "FTC v. Brown & Williamson Tobacco Corp., 778 F.2d 35, 41 n. 3 (D.C.Cir.1985) (refusing to extend Bose to the commercial speech context); see also Henry P. Monaghan, Constitutional Fact Review, 85 Colum.L.Rev. 229, 244-47 (1985), and Bose itself suggests that commercial speech might not warrant the higher standard of review established for libel cases. Bose, 466 U.S. at 504 n. 22, 104 S.Ct. at 1962 n. 22 (commercial speech generally considered less susceptible to the chilling effect of state regulation than other forms of speech). Although one might argue that Bose and Peel operating in tandem effectively overrule Colgate-Palmolive, we do not think that the Court intended that result. See Rodriquez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 1921-22, 104 L.Ed.2d 526 (1989) (“If a precedent of this Court has a direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, [Courts] of Appeals should follow the case which directly controls, leaving to [the Supreme] Court the prerogative of overruling its own decisions.”). Moreover, there are important distinctions between the sort of appellate review conducted in Bose and Peel and that done in Colgate-Palmolive and this case. The former involved review of court decisions, and courts generally lack the Commission’s expertise in the field of deceptive advertising. While it could be posited that it is counter-intuitive to grant more deference to the Commission than to courts, Commission findings are well-suited to deferential review because they may require resolution of “exceedingly complex and technical factual issues.” Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 645, 105 S.Ct. 2265, 2279, 85 L.Ed.2d 652 (1985); see also Colgate-Palmolive, 380 U.S. at 385, 85 S.Ct. at 1042. In addition, the determination of whether an ad has a tendency to deceive is an impressionistic one more closely akin to a finding of fact than a conclusion of law. National Comm’n on Egg Nutrition v. FTC, 570 F.2d 157, 161 (7th Cir.1977), cert. denied, 439 U.S. 821, 99 S.Ct. 86, 58 L.Ed.2d 113 (1978); Beneficial" }, { "docid": "11810432", "title": "", "text": "Corp. v. FTC, 542 F.2d 611, 617 (3d Cir.1976), cert. denied, 430 U.S. 983, 97 S.Ct. 1679, 52 L.Ed.2d 377 (1977). Most important, the restriction challenged in Peel is a completely different animal than the one challenged here. In Peel, the issue was whether a prophylactic regulation applicable to all lawyers, completely prohibiting an entire category of potentially misleading commercial speech, passed constitutional muster. Peel, 496 U.S. at 108-09, 110 S.Ct. at 2292 (plurality); id. at 111, 110 S.Ct. at 2293 (concurrence). Here, by contrast, the issue is whether an individualized FTC cease and desist order, prohibiting a particular set of deceptive ads, passes constitutional muster. See Zauderer, 471 U.S. at 645-46, 105 S.Ct. at 2279 (assessing deceptive advertising under the FTC Act a qualitatively different and more complex task than assessing the validity of a state attorney advertising regulation). We find the restriction at issue in Peel and the one here sufficiently distinct to justify differing levels of appellate review. Accordingly, we decline to review de novo the FTC’s findings and, with the substantial evidence test in mind, turn to the facts of this case. III. Kraft makes numerous arguments on appeal, but its principal claim is that the FTC erred as a matter of law in not requiring extrinsic evidence of consumer deception. Without such evidence, Kraft claims (1) that the FTC had no objective basis for determining if its ads actually contained the implied claims alleged, and (2) that the FTC’s order chills constitutionally protected commercial speech. Alternatively, Kraft contends that substantial evidence does not support the FTC’s finding that the Class Picture ads contain the milk equivalency claim. Finally, Kraft maintains that even if it did make the alleged milk equivalency and imitation superiority claims, substantial evidence does not support the FTC’s finding that these claims were material to consumers. We address each contention in turn. A. 1. In determining what claims are conveyed by a challenged advertisement, the Commission relies on two sources of information: its own viewing of the ad and extrinsic evidence. Its practice is to view the ad first and, if it" }, { "docid": "16910042", "title": "", "text": "categories ... may be regulated if the government satisfies [Central Hudson’s remaining three prongs].” (citation omitted)); Ibanez v. FI. Dep’t of Bus. & Prof'l Regulation, Bd. of Accountancy, 512 U.S. 136, 142, 114 S.Ct. 2084, 129 L.Ed.2d 118 (1994) (“[O]nly false, deceptive, or misleading commercial speech may be banned”). The Supreme Court has also emphasized that “States may not place an absolute prohibition on certain types of potentially misleading information ... if the information also may be presented in a way that is not deceptive.” In re R.M.J., 455 U.S. 191, 203, 102 S.Ct. 929, 71 L.Ed.2d 64 (1982); see also, e.g., Peel v. Attorney Registration & Disciplinary Comm’n of Ill., 496 U.S. 91, 100-01, 110 S.Ct. 2281, 110 L.Ed.2d 83 (1990); Shapero v. Ky. Bar Ass’n, 486 U.S. 466, 479, 108 S.Ct. 1916, 100 L.Ed.2d 475 (1988); Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626, 644, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985). We conclude from these precedents that the Central Hudson analysis applies to regulations of commercial speech that is only potentially misleading. The speech that Defendants’ content-based restrictions seeks to regulate — that which is irrelevant, unverifiable, and non-informational — is not inherently false, deceptive, or misleading. Defendants’ own press release described its proposed rules as protecting consumers against “potentially misleading ads.” This is insufficient to place these restrictions beyond the scope of First Amendment scrutiny. There is one exception to this conclusion. Subsection 1200.50(c)(3) prohibits “the portrayal of a fictitious law firm, the use of a fictitious name to refer to lawyers not associated together in a law firm, or otherwise imply that lawyers are associated in a law firm if that is not the case.” N.Y. Comp.Codes R. & Regs., tit. 22, § 1200.50(c)(3). The District Court invalidated § 1200.50(c)(3) in its entirety. Alexander, 634 F.Supp.2d at 249. Plaintiffs acknowledge, however, that they intended to challenge only the first clause of this subsection' — prohibiting portrayals of judges — and they do not oppose Defendants’ appeal seeking reinstatement of the prohibition on fictitious firms. The provision prohibiting advertisements" } ]

[ { "docid": "22145441", "title": "", "text": "BRIGHT, Senior Circuit Judge: Maiane Mgoian petitions this court for review of the Board of Immigration Appeals’ (“BIA”) denial of her application for asylum and refusal to withhold deportation under sections 208(a) and 243(h) of the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1158(a) and 1253(h), respectively. We have jurisdiction under 8 U.S.C. § llOSafe), and, for the reasons which follow, we grant her petition. I. Maiane Mgoian is a Kurdish-Moslem citizen of Armenia. She was admitted to the United States as a non-immigrant visitor for pleasure on June 17, 1993. Under the terms of her visa she was authorized to stay here until December 31, 1993, but she remained in this country without permission beyond that date. She is therefore deportable under § 241(a)(1)(B) of the INA, 8 U.S.C. § 1227(a)(1)(B). Mgoian filed her application for asylum and withholding of deportation on January 12, 1994 wherein she alleged that she suffered persecution in Armenia because of her Kurdish-Moslem heritage and would fear for her life if ever forced to return to her homeland. Nevertheless, on June 6, 1995, the Immigration and Naturalization Service (“INS”) issued an Order to Show Cause why she should not be deported. At a hearing held on January 12, 1996, an Immigration Judge (“IJ”) found Mgoian to be deportable, as charged, and denied her application. The IJ, while crediting Mgoian’s testimony, failed to find an objective basis for her claim of past persecution and instead determined that any abuse she suffered in Armenia, although ethnically motivated, was merely harassment or discrimination and not persecution. See Admin.R. at 38-45. Mgoian promptly appealed the IJ’s decision to the BIA and argued two points: first, that the IJ erred in finding that she was not eligible for asylum; and second, that her right to a fair hearing had been denied when the IJ forced her attorney to admit that she was deportable. On Janu ary 15, 1997, the BIA rejected both of Mgoian’s arguments and ordered her to depart voluntarily from the United States. The BIA agreed in principle with the IJ’s determination that the harassment and" } ]

[ { "docid": "22158678", "title": "", "text": "REINHARDT, Circuit Judge. Nune Mamouzian, a native and citizen of Armenia, petitions for review of a decision of the Board of Immigration Appeals (“BIA”). The BIA affirmed without opin ion the Immigration Judge’s (“IJ”) denial of her applications for political asylum, withholding of deportation, and protection under the Convention Against Torture (“CAT”). We have jurisdiction over her petition for review pursuant to 8 U.S.C. § 1252. We conclude that the IJ erred in determining that Mamouzian has not established a well-founded fear of future persecution on account of political opinion. Therefore, we grant Mamouzian’s petition for review and remand. I. Mamouzian testified to the following at her asylum hearing before the IJ: She worked as an electrical engineer for a state-owned factory from 1989 through the fall of 1995. In September of 1995, the director of the factory, a member of the ruling “HeHeShe” party, asked Mamouzi-an to help sell the factory’s machinery to governments in Iran, Libya, and North Korea. After assisting in a couple of transactions over the course of three months, she told the factory director that she opposed the dismantling of the factory despite the profits such sales would bring to the government because she “did not want the factory to ... stay jobless.” The director became very angry with her and called the police. After arresting Mamou-zian, the police hit and kicked her until she lost consciousness. She was detained for one week and released only after her family paid a fine. After the arrest, Mamouzi-an was fired from the factory and was subsequently unable to find another job. Approximately one year later, Mamouzi-an participated in a massive anti-government rally, demanding the resignation of the ruling HeHeShe party officials. She and other demonstrators who were holding banners in the front row of the crowd were attacked and arrested by the police. At the police station, Mamouzian explained why she opposed the HeHeShe party, at which point the officers beat her for about twenty minutes. The next day, she was taken to court, where she testified regarding her opposition to the HeHeShe party’s policies, including the" }, { "docid": "22088414", "title": "", "text": "accident two weeks earlier, and the matter was reset for June 10, 2004. The merits hearing was eventually held on June 10, 2004, and the IJ denied Karape-tyan’s motion for a short continuance to submit fingerprints after the hearing concluded. Although Karapetyan’s case had been continued previously, the interest in administrative efficiency cannot justify the pretermission of Karapetyan’s claims where the other factors we have addressed — the importance of the evidence excluded, the reasonableness of the petitioner’s conduct, and the inconvenience to the immigration court — all militate strongly in Karapetyan’s favor. Accordingly, we conclude that the IJ abused her discretion when she denied Karapetyan’s motion for a continuance. B. The IJ’s Denial of the Continuance was Improper to the Extent the Decision was Based on an Erroneous Assessment of the Underlying Claim The IJ indicated that the denial of the continuance was based on her assessment of Karapetyan’s eligibility for relief. The IJ suggested that she might reconsider the denial of the continuance based on her assessment of the underlying claim. She stated, “All right, we’ll [take] the testimony today and if for any reason, it looks like a continuance might be required, we’ll consider that at the end of the testimony.” In her oral decision, following the merits hearing, the IJ revisited the issue and denied the motion for a continuance because “after hearing [Karapetyan’s] claim,” the IJ determined that he “does not appear eligible for asylum in any event.” In light of the legal errors committed by the IJ during her evaluation of Karape-tyan’s claim for asylum, we find the IJ’s denial of a continuance is improper to the extent that the decision was based on the IJ’s flawed analysis of Karapetyan’s claims for relief. V. THE BIA ABUSED ITS DISCRETION WHEN IT DENIED KARA-PETYAN’S MOTION TO RECONSIDER We also conclude that the BIA abused its discretion when it denied Karapetyan’s motion to reconsider. The BIA asserted that it was denying the motion to reconsider because the motion failed to present new legal arguments. It stated, “[w]e find no new legal argument presented nor any particular" }, { "docid": "22088407", "title": "", "text": "NOT SUPPORTED BY SUBSTANTIAL EVIDENCE The IJ based her finding that Karape-tyan was ineligible for withholding of removal and CAT relief upon her faulty conclusion that Karapetyan had failed to meet the more lenient standard for asylum relief. For the reasons discussed in Section II, the IJ erred as to the substance of the asylum claim. Thus, we remand for a determination of whether Karapetyan is eligible for withholding of removal and CAT relief. IV. THE IJ IMPROPERLY DENIED KARAPETYAN’S MOTION FOR A CONTINUANCE TO COMPLY WITH THE FINGERPRINTING REQUIREMENTS As an alternate basis for the denial of relief, the IJ found that Karapetyan was ineligible for relief because he had not submitted fingerprints. Karapetyan moved for a continuance so that he could submit his fingerprints. The IJ denied the motion for a continuance. A. The IJ Abused Her Discretion in Denying the Continuance The IJ abused her discretion in denying Karapetyan’s request for a continuance so that he could submit fingerprints. Under 8 C.F.R. § 1003.29, an IJ “may grant a motion for continuance for good cause shown.” In the context of immigration proceedings, the decision to grant or deny continuances is in the sound discretion of the trial judge. See Nakamoto, 363 F.3d at 883 n. 6 (9th Cir.2004); see also Baires, 856 F.2d at 91. But the IJ’s discretion is limited. Baires, 856 F.2d at 91 (quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964)). We will reverse an IJ’s decision should we conclude that her ruling results from “an abuse of discretion.” Id. When evaluating an IJ’s denial of a motion for continuance we consider a number of factors — including, for example, (1) the importance of the evidence; (2) the reasonableness of the immigrant’s conduct; (3) the inconvenience to the court; and (4) the number of continuances previously granted in the case. See Baires, 856 F.2d at 92-93; cf. United States v. Flynt, 756 F.2d 1352, 1358-59 (9th Cir.1985) (listing factors appellate court considers when reviewing district court’s denial of request for continuance), amended, 764 F.2d 675 (9th Cir.1985)." }, { "docid": "22088387", "title": "", "text": "363 F.3d 874, 883 n. 6 (9th Cir.2004); see also Baires v. INS, 856 F.2d 89, 91 (9th Cir.1988). We also review a denial of a motion to reconsider for abuse of discretion. INS v. Doherty, 502 U.S. 314, 324, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). We will reverse the denial of a motion to reconsider if it is “arbitrary, irrational, or contrary to law.” Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.2002) (internal quotation marks omitted). PROCEDURAL AND FACTUAL BACKGROUND I. KARAPETYAN’S BACKGROUND Karapetyan is a native of the Soviet Union and a citizen of Armenia. He was admitted as a visitor to the United States on December 25, 2000 and obtained permission to remain until June 24, 2001. He remained in the United States beyond June 24, 2001 without authorization. On February 6, 2002, the Department of Homeland Security (“DHS”) (formerly INS) issued a Notice to Appear, which charged Karapetyan with being present in the United States in violation of 8 U.S.C. § 1227(a)(1)(B). At a master calendar hearing on March 19, 2002, Karapetyan conceded the charge of removability. The IJ designated Armenia as the country of removal. Karape-tyan sought immigration relief in the form of asylum, withholding of removal, CAT relief, and, alternatively, voluntary departure. On June 10, 2004, the IJ held a merits hearing. There, Karapetyan testified and submitted documentary evidence in support of his applications for relief. II. KARAPETYAN’S TESTIMONY The IJ determined that Karapetyan testified credibly during the merits hearing, stating “the [IJ] notes that the [petitioner] has testified in a credible manner.” Where the IJ finds the applicant’s testimony to be credible and the BIA makes no contrary finding, we accept as undisputed the applicant’s testimony. Baballah, 367 F.3d at 1073. Thus, we accept the testimony recounted below as true. Karapetyan was born to a family of mixed ethnicity, with a Russian mother and an Armenian father. When he was a teenager, Karapetyan and his family moved to Yerevan, Armenia to escape the war in Chechnya. In Armenia, Karape-tyan’s family suffered humiliation and discrimination on account of its mixed ethnicity. Karapetyan" }, { "docid": "22253950", "title": "", "text": "Partial Concurrence and Partial Dissent by Judge BEA. OPINION NAVARRO, Chief District Judge: Lianhua Jiang (“Petitioner”), a native and citizen of China, petitions for review of the Board of Immigration Appeals (“BIA”) decision, which substantially adopted the order of the Immigration Judge (“IJ”) that denied asylum, withholding of removal and relief under the Convention Against Torture (“CAT”). In denying Petitioner’s application, the IJ found Petitioner not credible. Petitioner now petitions for review and argues that the IJ’s adverse credibility determination is based on impermissible grounds and is not supported by substantial evidence. We have jurisdiction under 8 U.S.C. § 1252. In light of the highly deferential standard of review, we deny the petition. I. FACTS AND PROCEEDINGS BELOW Petitioner is a native and citizen of the People’s Republic of China and is of ethnic Korean descent. She also claims to be a Christian. Petitioner entered the United States in June 2005 and, on August 4, 2005, she submitted an application for asylum, withholding of removal, and protection under CAT. A In her asylum declaration, Petitioner claims that she is seeking asylum because of religious persecution by the Chinese government. Specifically, Petitioner alleges that she began attending Christian services at an unofficial “house church” in October 2003 and was baptized on Christmas Day 2003. Petitioner’s declaration further states that, on January 16, 2005, while attending a church service at the house church, the police arrested her for attending an illegal meeting. Petitioner asserts that the police detained her for seventeen days. The asylum declaration also describes the police treatment that Petitioner endured during her detention. First, she claims that the police took her to an interrogation room, slapped her face, accused her of illegal activity, and threatened to send her to a labor camp if she refused to confess. Additionally, the declaration explains that, when she refused to confess to the police’s allegations, the police began yelling and kicking her legs and back until she lost consciousness. When she later regained consciousness, she was in a jail cell and was still feeling the effects of the physical abuse. Later, the police" }, { "docid": "22684539", "title": "", "text": "BYBEE, Circuit Judge. Preet Kaur (“Kaur”) petitions for review of a decision of the Board of Immigration Appeals (“BIA”), affirming the Immigration Judge’s (“IJ”) decision denying her requests for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). The IJ denied Kaui*’s application because he found her not credible. Kaur asserts that the IJ’s adverse credibility determination was based upon impermissible grounds and was not supported by substantial evidence. Specifically, she argues that the IJ relied on inconsistencies that may have weakened her claim for asylum, but that had no bearing on her credibility. The question presented here is significant: Must an IJ ignore repeated and blatant inconsistencies throughout an alien’s hearing testimony and applications, simply because, when viewed individually, each inconsistency actually served to weaken her eligibility for relief? We conclude that nothing in our case law mandates such a technical approach to credibility determinations. Accordingly, we hold that, in light of the facts of this case, the IJ’s adverse credibility determination was supported by substantial evidence. We deny the petition. I. FACTS AND PROCEEDINGS BELOW Petitioner Kaur, a native and citizen of India, entered the United States in March of 1993. Subsequently, in January 1995, Kaur applied for asylum, withholding of removal, and relief under the CAT. In her initial application, Kaur provided certain biographical information about herself, specifically representing that she was not married. She claimed that she was persecuted because her brother and father were members of the All India Sikh Student Federation (“Federation”) and had been active in local political affairs. Kaur described in her application how, in December of 1991, more than 65 Punjabi police officers raided her home and arrested her brother and father. She also stated that she had personally campaigned for the boycott of the February 1992 state assembly election in the Punjab region of India. She recalled that she was arrested, in May of 1992, taken to a police station, and raped twice by a local police officer. She represented that she subsequently fled India by traveling first to Nepal, then to Singapore, Canada, and finally, the" }, { "docid": "19969458", "title": "", "text": "LYNCH, Chief Judge. Astghik Kechichian, a native and citizen of Armenia, petitions for review of a final order of removal of the Board of Immigration Appeals (“BIA”). The BIA agreed with the finding of the Immigration Judge (“IJ”) that Kechichian is not entitled to withholding of removal because she has not shown that it is more likely than not she would be persecuted were she to return to Armenia. The BIA declined to address Kechichian’s argument that she is a member of a social group of people with mental illness requiring treatment because she had failed to raise that argument before the IJ. The BIA also refused to remand the case to the IJ on account of a newly produced certificate from the Armenian Embassy stating that Kechichian’s son is not an Armenian citizen. We deny the petition for review. I. Kechichian entered the United States on December 17, 1996 with a non-immigrant visitor visa valid through December 16, 1997. On April 9, 2001, she was served with a Notice To Appear, charging that she had remained in the United States beyond December 16, 1997 without authorization. In pleadings before the IJ on May 9, 2001, Kechichian conceded that she was removable as charged in the Notice To Appear. On February 15, 2005, Kechichi-an filed an application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). An affidavit accompanying Kechichian’s application stated that her father had fled Armenia in 1991, was currently residing in the United States, and had a pending application for asylum. In Armenia, her father had been a doctor and a writer who challenged and frequently came into conflict with government authorities, as a result of which he was harassed and eventually fired from his job. Kechichian’s brother was also a doctor. In 1993, he refused to cover up the beating of an anti-government activist, as a result of which he was beaten and held overnight by the government and fired from his job at a hospital. He found a new position, and in April 1996, he was ordered to inject lethal substances" }, { "docid": "20649404", "title": "", "text": "PER CURIAM. Petitioner Marie Chahid Hayek, a native and citizen of Lebanon, seeks review of the decision of the Board of Immigration Appeals (“BIA”) pretermitting her application for asylum as time-barred and denying her applications for withholding of removal and relief under the Convention Against Torture (“CAT”) because she did not meet her burden of proof. Hayek argues that she is eligible for asylum based on the “changed circumstances” exception to the filing deadline and that she has provided credible testimony and corroborative evidence compelling a reasonable factfinder to conclude that she is entitled to withholding of removal and CAT relief. Because we lack jurisdiction to consider her argument about the timeliness of her asylum application, and because we reject the remainder of her arguments, we deny Hayek’s petition for review. I. On September 2, 1992, Hayek entered the United States as a visitor, with authorization to remain for a temporary period not to exceed one month. Eleven days after her arrival, she married her flaneé, a Lebanese citizen who had arrived in the United States three years before and overstayed. They both remained illegally in the United States and later had two children, both of whom are United States citizens. In 2000, Hayek’s husband was deported to Lebanon. On February 4, 2002, the Immigration and Naturalization Service (“INS”) served Hayek with a notice to appear, charging her with being subject to removal for remaining in the United States without authorization, pursuant to 8 U.S.C. § 1227(a)(1)(B). At a hearing before an immigration judge (“IJ”), Hayek conceded removability, but applied for asylum, withholding of removal, CAT relief, and, in the alternative, voluntary departure. We summarize the evidence that Hayek provided in support of her claims and discuss the decisions of the IJ and the BIA. A. Evidence before the IJ and BIA In support of her application for asylum, withholding of removal, and CAT relief, Hayek testified that she experienced a series of threats and physical attacks while she was involved with the Lebanese Forces, a Christian military and political group opposed to the presence of Syrian forces in Lebanon." }, { "docid": "22088396", "title": "", "text": "See 8 C.F.R. § 1208.13(b)(2). The demonstration of past persecution creates a rebuttable presumption that the applicant has a well-founded fear of persecution on the basis of the original claim. See id. § 208.13(b)(1). Here, Karapetyan provided uncontro-verted evidence of his past persecution— which included physical and verbal abuse — on account of his mixed Armenian-Russian ethnicity and membership in a disfavored political party. He testified that he was detained by the military, beaten by officers, called derogatory names, and assigned to demeaning tasks because his mother was Russian. Karapetyan further testified that he was detained in isolation, beaten, hospitalized for injuries, and warned to leave the country because of his association with the 21st Century Party, a political organization that sought political change in Armenia and advocated for human rights. The IJ’s conclusion that Karapetyan is not statutorily eligible for asylum is not supported by substantial evidence. As we discuss further below, the IJ made a series of factual and legal errors in reaching her conclusion that Karapetyan was not statutorily eligible for asylum. A. Past Persecution The IJ’s conclusion that Karapetyan failed to show past persecution is not supported by substantial evidence. The record indicates that the IJ arrived at this conclusion only by misunderstanding the record and misapplying the law. See Smolniakova v. Gonzales, 422 F.3d 1037, 1045-46 (9th Cir.2005) (granting relief and criticizing IJ for misconstruing the record). For example, with regard to Karape-tyan’s three-day detention, the IJ stated, “his testimony did not indicate that he was beaten.” This pronouncement overlooks the facts in the record. On direct examination, Karapetyan stated, “For three days, they would not let me talk to anybody, no phone calls, anything, nothing. They [sic] investigating person was [sic] beating me in their cells.” The IJ also assumed that Karapetyan’s injuries, which resulted from his three-day detention in early November 2000, were not significant because Karapetyan did not seek medical attention. But Karapetyan never testified as to whether he sought medical treatment on that occasion. The IJ’s conclusion that Karapetyan did not seek treatment was nothing more than conjecture and, thus, cannot" }, { "docid": "22088388", "title": "", "text": "19, 2002, Karapetyan conceded the charge of removability. The IJ designated Armenia as the country of removal. Karape-tyan sought immigration relief in the form of asylum, withholding of removal, CAT relief, and, alternatively, voluntary departure. On June 10, 2004, the IJ held a merits hearing. There, Karapetyan testified and submitted documentary evidence in support of his applications for relief. II. KARAPETYAN’S TESTIMONY The IJ determined that Karapetyan testified credibly during the merits hearing, stating “the [IJ] notes that the [petitioner] has testified in a credible manner.” Where the IJ finds the applicant’s testimony to be credible and the BIA makes no contrary finding, we accept as undisputed the applicant’s testimony. Baballah, 367 F.3d at 1073. Thus, we accept the testimony recounted below as true. Karapetyan was born to a family of mixed ethnicity, with a Russian mother and an Armenian father. When he was a teenager, Karapetyan and his family moved to Yerevan, Armenia to escape the war in Chechnya. In Armenia, Karape-tyan’s family suffered humiliation and discrimination on account of its mixed ethnicity. Karapetyan was called a “Russian pig,” a “Chechnyan bastard,” and a “Chechnyan pig” by people in his community and by members of the military. While completing mandatory military service, Karapetyan was routinely assigned to dirty, demeaning tasks by supervisors who knew of his mixed ethnicity. He was also beaten by military members. When the military officers learned that Karapetyan submitted written complaints about his treatment, Karapetyan was beaten and locked in a cell. In April 2000, Karapetyan joined the 21st Century Party, a political association led by Arkady Vardanyan (“Vardanyan”) that sought governmental change and championed human rights. In October 2000, Karapetyan participated, as a member of the 21st Century Party, in a large protest involving at least 10,000 attendees. Several protesters were arrested, including the 21st Century Party leader, Vardan-yan, and his attorney. The day following the protest, military officers searched Karapetyan’s home and arrested him. He was detained in isolation for three days. While in prison, Karapetyan was interrogated regarding his involvement with the 21st Century Party. The military officers called Karape-tyan a “Russian" }, { "docid": "20304893", "title": "", "text": "PREGERSON, Circuit Judge: Ellinah Kalumu Mutuku (“Mutuku”) petitions for review of the Board of Immigration Appeals’s (“BIA”) dismissal of her appeal of the immigration judge’s (“IJ”) denial of her claims for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We dismiss the petition for review with respect to Mutuku’s asylum claim, deny the petition with respect to her CAT claim, and grant the remainder of her petition and remand to the BIA for further proceedings. I. Background Mutuku is a fifty-seven-year-old native and citizen of Kenya. In Kenya, she worked for Lutheran World Relief, a Christian non-governmental organization, and was an organizer and supporter of the Democratic Party, the leading opposition party in Kenya at the time. In August 1992, a band of armed men came looking for her at her house, burned down her home, beat her sister, and harassed her mother. The men told Mutuku’s mother, who escaped the fire, that they would kill Mutuku if she did not stop her political activities. Mutuku submitted several photographs of her destroyed home to the IJ. After this incident, Mutuku received three phone calls threatening to “come for [her] head” if she did not cease her political activities. Finally, in October 1992, Mutuku was almost hit by a Kanu Party (“KANUP”) activist driving a truck. Mutuku fled Kenya and came to the United States in November 1992 on a B-2 visitor visa. The Immigration and Naturalization Service (now the Bureau of Immigrations and Customs Enforcement of the Department of Homeland Security) issued Mutuku a Notice to Appear on September 11, 1998, charging her as remova ble because she had overstayed her visa. In response, Mutuku applied for asylum, withholding of removal, and relief under CAT, claiming that she had been persecuted on the basis of her political opinion in Kenya and would likely be persecuted or tortured if she were to return. On February 18, 2004, the IJ denied Mutuku’s claims for asylum, withholding of removal, and relief under CAT. The IJ held that Mutuku was ineligible for" }, { "docid": "23214354", "title": "", "text": "FLAUM, Chief Judge. This matter is a Petition for Review of an Order of Removal issued by the Board of Immigration Appeals (“BIA”) brought by Petitioner Mei Dan Liu, a native and citizen of the People’s Republic of China. Mei Dan fled China at the age of sixteen because, according to her, the local government officials believed that she was a follower of Falun Gong, the Chinese health and spiritual movement that was outlawed by the Chinese government in 1999. As a result of her imputed membership in Fa-lun Gong, Mei Dan claims that she was arrested, jailed, physically abused, interrogated, threatened, expelled from school, and her home was ransacked. Upon arriving in the United States after a long journey, Mei Dan was detained and placed in removal proceedings. At that time, she requested political asylum and was referred to the Immigration Court in Chicago, Illinois. An Immigration Judge (“IJ”) denied Mei Dan’s applications for asylum under § 208(a) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1158(a), withholding of removal under § 241(b)(3) of the INA, 8 U.S.C. § 1231(b)(3), and for relief under the United Nations Convention Against Torture, as implemented in 8 C.F.R. § 208.16(c). The BIA dismissed Mei Dan’s appeal of the Immigration Judge’s (“IJ”) decision. Mei Dan then petitioned this Court for review of her asylum claim. For the reasons stated in this opinion, we deny the petition for review and affirm the decision of the BIA. I. Background The BIA found that even if it accepted Mei Dan’s testimony as true, she failed to establish her eligibility for asylum. In reviewing the BIA’s decision, we too accept the facts as Mei Dan presented them at her asylum hearing. sft * * ❖ * * Mei Dan testified as follows: Until she fled China at age sixteen, Mei Dan lived with her parents and younger brother in Tin Tou Village in Fuzhou City, in the Fujian Province, China. Her father worked as a rock miner and her mother was a homemaker who also cleaned other people’s houses and babysat children. Mei Dan was" }, { "docid": "22786837", "title": "", "text": "D.W. NELSON, Senior Circuit Judge: Afroza and Khandker Hasan, husband and wife, and native citizens of Bangladesh, petition for review of the Board of Immigration Appeals’ denial of their requests for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). The Immigration Judge (“IJ”) found that the Hasans had failed to establish that their past persecution was on account of an enumerated ground, and therefore dismissed their claims for asylum and withholding of removal. The IJ also found that the Hasans had failed to establish that, upon their return to Bangladesh, they were more likely than not to experience torture with the consent or approval of government officials acting in their official capacity, and therefore, denied them relief under CAT. The Board of Immigration Appeals (“BIA”) affirmed the decision of the IJ without opinion. We have jurisdiction pursuant to the Immigration and Nationality Act (“INA”) § 242(a)(1), 8 U.S.C. § 1252(a)(1). We find that substantial evidence supported the IJ’s conclusion that the Hasans had not established eligibility for CAT relief. However, the IJ erred in concluding that the Hasans had not established that their past persecution was on account of political opinion. Accordingly, we grant the petition for review and reverse and remand to the BIA for further proceedings consistent with this opinion. I. Factual and Procedural History The following facts are drawn from the Hasans’ testimony at their asylum hearing, as well as their written application for asylum. Because the IJ did not make an adverse credibility finding, we accept the Hasans’ testimony as true. See Damon v. Ashcroft, 360 F.3d 1084, 1086 n. 2 (9th Cir.2004). A. The Hasans’ Experiences in Bangladesh Afroza Hasan (hereinafter “Afroza,” in order to distinguish her from her husband “Khandker”), the lead petitioner, worked as a reporter for Purnima, a local newspaper in Bangladesh. She primarily reported on women’s issues in the region in which she lived. Afroza was a member of the Bangladesh Nationalist Party (“BNP”), one of Bangladesh’s major political parties. She was also a member of Mohila Parish-ad, a women’s organization that served distressed women in the" }, { "docid": "22331298", "title": "", "text": "WILLIAM A. FLETCHER, Circuit Judge: Ranjeet Kaur petitions for review of a decision of the Board of Immigration Appeals (“BIA”) upholding the Immigration Judge’s (“IJ”) denial of her application for asylum and withholding of removal, and denial of her motion to remand to the IJ to apply for relief under the Convention Against Torture (“CAT”). Because we find that the BIA’s asylum decision was not based on substantial evidence, we grant the petition and remand to the BIA for proceedings consistent with this opinion. I. Background Ranjeet Kaur is a Sikh and a native and citizen of India. She entered the United States illegally in July 1996 and was placed in removal proceedings the following year. After admitting removability, Kaur filed for asylum and withholding of removal. She testified before the IJ that in 1995 she was imprisoned, beaten, and raped in India because the police wrongly imputed her father’s alleged connections to Sikh militants to her. The IJ denied Kaur’s application for asylum and withholding of removal because he found that her testimony was not credible. The BIA affirmed the IJ’s credibility finding. It held, further, that even if Kaur were found to be credible, the weaknesses in her testimony were such that the testimony was insufficient to carry her burden of proof without corroborating evidence, which she had failed to provide. Kaur testified that her family had a large farm of 80 acres in India. She testified on direct examination that in May 1993, Sikh “militants” or “terrorists” came to her family’s home at six o’clock in the evening and demanded the family’s jeep. Kaur was in the kitchen, preparing food. After her father told the militants that her uncle had taken the jeep, one of them became angry, showed his pistol and said, “in case you try to be cle[]ver, we are going to kill all of your family.” Kaur’s father offered the militants his tractor instead. “Then they said along with the tractor we need some money also.” Kaur testified that her father “went inside and suddenly I heard- — I heard shots being fired.... When" }, { "docid": "22088386", "title": "", "text": "PREGERSON, Circuit Judge: Artur Karapetyan (“Karapetyan”), a native of the Soviet Union and a citizen of Armenia, petitions for review of a final order by the Board of Immigration Appeals (“BIA”) that summarily affirmed the Immigration Judge’s (“IJ”) denial of Kara-petyan’s application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”) (No. 05-75865). Karapetyan also petitions for review of the BIA’s denial of his motion to reconsider its decision (No. 05-77141). We have jurisdiction under 8 U.S.C. § 1252. We grant relief and remand for further proceedings consistent with this opinion. STANDARD OF REVIEW Because the BIA adopted and affirmed the decision of the IJ, this court also reviews the IJ’s decision. See Hoque v. Ashcroft, 367 F.3d 1190, 1194 (9th Cir.2004). We review questions of law de novo, Baballah v. Ashcroft, 367 F.3d 1067, 1073 (9th Cir.2004), and factual findings for substantial evidence, Mejia-Paiz v. INS, 111 F.3d 720, 722 (9th Cir.1997). We review the IJ’s decision to deny a request for continuance for abuse of discretion. Nakamoto v. Ashcroft, 363 F.3d 874, 883 n. 6 (9th Cir.2004); see also Baires v. INS, 856 F.2d 89, 91 (9th Cir.1988). We also review a denial of a motion to reconsider for abuse of discretion. INS v. Doherty, 502 U.S. 314, 324, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). We will reverse the denial of a motion to reconsider if it is “arbitrary, irrational, or contrary to law.” Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.2002) (internal quotation marks omitted). PROCEDURAL AND FACTUAL BACKGROUND I. KARAPETYAN’S BACKGROUND Karapetyan is a native of the Soviet Union and a citizen of Armenia. He was admitted as a visitor to the United States on December 25, 2000 and obtained permission to remain until June 24, 2001. He remained in the United States beyond June 24, 2001 without authorization. On February 6, 2002, the Department of Homeland Security (“DHS”) (formerly INS) issued a Notice to Appear, which charged Karapetyan with being present in the United States in violation of 8 U.S.C. § 1227(a)(1)(B). At a master calendar hearing on March" }, { "docid": "22088391", "title": "", "text": "United States on December 25, 2000. Thereafter, Karapetyan applied for asylum, withholding of removal, and CAT relief. He applied for voluntary departure in the alternative. III. IJ AND BIA DECISIONS The IJ denied Karapetyan’s request for asylum, withholding of removal, and CAT relief, but granted the limited relief of voluntary departure. As a basis for the decision, the IJ found that Karapetyan was not statutorily eligible for asylum because he had failed to show that he was a refugee. Alternatively, the IJ found that Ka-rapetyan was ineligible for asylum because he had failed to submit his fingerprints for a security check. Karapetyan moved for a continuance so that he could submit the fingerprints, but the IJ denied his request. Karapetyan appealed to the BIA, which affirmed the results without opinion. The BIA subsequently denied Karapetyan’s motion to reconsider. Karapetyan timely appealed both decisions. DISCUSSION I. THE IJ ERRONEOUSLY REQUIRED CORROBORATING EVIDENCE DESPITE FINDING THAT KARAPETYAN HAD TESTIFIED CREDIBLY We begin by recognizing that the IJ erred when she required corroborating evidence despite finding that Karapetyan had testified credibly. At the conclusion of Karapetyan’s merits hearing, the IJ made an express finding that Karapetyan had testified credibly. The IJ concluded, “the [petitioner] has testified in a credible manner.” Yet, the IJ failed to credit Karapetyan’s testimony, in part because he did not provide corroborating documentary evidence of his persecution. Pointing to the lack of corroborating documentary evidence, the IJ concluded that Karapetyan had failed to show that he was statutorily eligible for relief. The IJ’s oral decision is laden with references to the lack of certain documents. See Administrative Record (noting petitioner’s “fail[ure] to present any documents establishing that [petitioner] was a member of the 21st Century Party”) (noting petitioner “brought no documents establishing that he was [ ]ever a member of the 21st Century Party.”) (noting petitioner “has presented no documents establishing that there ever was ... a rally”) (noting petitioner “did not pres ent his passport”) (noting petitioner “has supplied no documents, whatsoever, to establish that he ever served in the military”) (noting petitioner “did not present anything from" }, { "docid": "22088390", "title": "", "text": "pig.” They used batons to beat the soles of Karapetyan’s feet until he eventually agreed to sign false papers stating that the 21st Century Party was an illegal organization and its leader, Vardan-yan, was a Russian spy. After his release from prison, Karape-tyan spoke out against his treatment on a radio station on November 10, 2000. He criticized the Armenian government and called upon others to demonstrate against the government. Two days later, on November 12, 2000, four law enforcement officers came to Ka-rapetyan’s home and beat him “like a dog,” leaving bruises on his face and other parts of his body. Karapetyan was hospitalized for injuries caused by those beatings. The law enforcement officers told Karape-tyan to leave the country. They told him that, if he refused to leave, he would be put in prison or “something else [would] happen” to him. Karapetyan believed he was in grave danger if he remained in Armenia, and so he obtained a B-l/B-2 visa from the United States Embassy on December 6, 2000. He arrived in the United States on December 25, 2000. Thereafter, Karapetyan applied for asylum, withholding of removal, and CAT relief. He applied for voluntary departure in the alternative. III. IJ AND BIA DECISIONS The IJ denied Karapetyan’s request for asylum, withholding of removal, and CAT relief, but granted the limited relief of voluntary departure. As a basis for the decision, the IJ found that Karapetyan was not statutorily eligible for asylum because he had failed to show that he was a refugee. Alternatively, the IJ found that Ka-rapetyan was ineligible for asylum because he had failed to submit his fingerprints for a security check. Karapetyan moved for a continuance so that he could submit the fingerprints, but the IJ denied his request. Karapetyan appealed to the BIA, which affirmed the results without opinion. The BIA subsequently denied Karapetyan’s motion to reconsider. Karapetyan timely appealed both decisions. DISCUSSION I. THE IJ ERRONEOUSLY REQUIRED CORROBORATING EVIDENCE DESPITE FINDING THAT KARAPETYAN HAD TESTIFIED CREDIBLY We begin by recognizing that the IJ erred when she required corroborating evidence despite finding that Karapetyan" }, { "docid": "22088416", "title": "", "text": "aspect of [the] case that was overlooked in our previous decision. Accordingly, the motion will be denied.” There is no basis for the BIA’s finding that “no new legal argument” was presented. A comparison of petitioner’s appellate brief to the BIA and his subsequent motion for reconsideration demonstrates that although the motion for reconsideration reiterated many of the arguments that had previously been presented to the BIA, it also raised new claims. For example, it argued, for the first time, that the IJ had improperly denied Karapetyan’s motion for a continuance to take fingerprints. It also argued, for the first time, that the IJ violated Karapetyan’s right to procedural due process in denying the motion for a continuance. Moreover, the motion for reconsideration drew the BIA’s attention to additional facts from the record and supplemental case citations. We therefore conclude that the BIA abused its discretion in denying the motion for reconsider on the grounds that the motion failed to present new arguments or aspects of the case. Nonetheless, because we are granting Karapetyan’s other petition, we need not remand to the BIA on these grounds. CONCLUSION For these reasons, we conclude that Ka-rapetyan is statutorily eligible for asylum relief. We also find that the IJ abused her discretion in denying Karapetyan’s motion for a continuance so that he could submit fingerprints. We remand for proceedings consistent with this opinion. REVERSED and REMANDED. . Although credible testimony need not be corroborated, Ladha v. INS, 215 F.3d 889, 901 (9th Cir.2000), this testimony was corroborated by a newspaper article from Armenian New Armenia, vol. X, issue 7, Jan. 11, 2001, that describes the detention of Vardanyan. Additionally, the State Department Report confirms that roughly 10,000 people attended Vardanyan’s rally to seek governmental change. . This testimony was corroborated by a letter from the Ministry of National Security of Republic of Armenia, which confirms that Kara-petyan was arrested and detained in isolation for three days for his association with the 21st Century Party. . This testimony was corroborated by an Armenia Republican Hospital report stating that Karapetyan had been beaten in his" }, { "docid": "5127882", "title": "", "text": "LYNCH, Chief Judge. Mary Wangui Warui, of Kenya, petitions for review of the Board of Immigration Appeals (“BIA”) denial of her motion to reopen. The BIA denied her motion to reopen and remand her case for further consideration of her claims for withholding of removal and protection under the Convention Against Torture (“CAT”). We deny the petition in part and dismiss it in part. I. Warui entered the United States from Kenya on November 30, 2001 as a visitor, authorized to remain in the country until May 29, 2002. She overstayed. On October 14, 2004, the Department of Homeland Security filed a Notice to Appear (“NTA”) in Immigration Court, initiating removal proceedings against Warui. Her husband, Leonard Karioki, also a native and citizen of Kenya, entered the United States on April 6, 2004 and overstayed his visa. He was placed in separate removal proceedings around the same time as Warui. On January 7, 2005, Warui sought to consolidate her case with that of her husband, admitting certain allegations in the NTA and conceding removability. The cases were subsequently consolidated. On March 10, 2005, Karioki applied for asylum, withholding of removal, and protection under the CAT. As part of his application, he sought derivative asylum relief for Warui as his spouse. Warui was ineligible for asylum in her own right because she had not filed a timely application. Warui did not make independent claims for withholding of removal and CAT protection. At a merits hearing held on May 8, 2006, Warui and Karioki both testified in support of their claims. In their testimony, they expressed fear that if they were removed to Kenya Warui would be forced to undergo female genital mutilation (“FGM”) by a group called the Mungiki. In his oral decision, the Immigration Judge (“IJ”) first found that Karioki and Warui did not testify credibly, based on inconsistencies in their testimony. Even assuming the two had testified credibly, the IJ found Karioki’s and Warui’s testimony still insufficient to meet their burden for asylum for several reasons. First, the IJ found that Karioki and Warui had testified they had been" }, { "docid": "22088417", "title": "", "text": "petition, we need not remand to the BIA on these grounds. CONCLUSION For these reasons, we conclude that Ka-rapetyan is statutorily eligible for asylum relief. We also find that the IJ abused her discretion in denying Karapetyan’s motion for a continuance so that he could submit fingerprints. We remand for proceedings consistent with this opinion. REVERSED and REMANDED. . Although credible testimony need not be corroborated, Ladha v. INS, 215 F.3d 889, 901 (9th Cir.2000), this testimony was corroborated by a newspaper article from Armenian New Armenia, vol. X, issue 7, Jan. 11, 2001, that describes the detention of Vardanyan. Additionally, the State Department Report confirms that roughly 10,000 people attended Vardanyan’s rally to seek governmental change. . This testimony was corroborated by a letter from the Ministry of National Security of Republic of Armenia, which confirms that Kara-petyan was arrested and detained in isolation for three days for his association with the 21st Century Party. . This testimony was corroborated by an Armenia Republican Hospital report stating that Karapetyan had been beaten in his residence, \"suffered numerous bruises and injuries,” and was hospitalized for one day. . The IJ’s remark that she did “not know what to believe about [Karapetyan's] claim” does not constitute a specific adverse credibility finding. See Kalubi v. Ashcroft, 364 F.3d 1134, 1137-38 (9th Cir.2004) (\"[I]t is clearly our rule that when the IJ makes implicit credibility findings in passing, ... this does not constitute a credibility finding.”) (internal quotation and citation omitted). .Contrary to the IJ's assertion, Karapetyan had submitted a State Department Report, which states, \"[i]n October 2000, Arkady Var- danyan [the leader of the 21st Century Party], a Moscow-based Armenian businessman who is a Russian citizen, led a demonstration in Yerevan of approximately 10,000 persons calling for the removal of the Government.” .It is worth noting that the IJ erred in her evaluation of the corroborating documents that were submitted. In her oral decision, the IJ remarked, \"[t]he [petitioner] did have some documents that would help establish his claim, but he failed to have them authenticated.” Yet, the IJ never ruled on" } ]

[ { "docid": "23224889", "title": "", "text": "and exceptions thereto in the context of situations where, like here, the defendant pled guilty to a prior offense. See Shepard, — U.S. at-, 125 S.Ct. at 1258-59. In determining whether a prior offense qualifies as a crime of violence, it explained a court is “generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Id. at 1257. Here, the categorical approach begins with an examination of Colorado Revised Statute § 18-3-405 and its corresponding statutes and, under such an approach, we determine whether a conviction thereunder constitutes a “crime of violence” as defined under § 4B1.2. “We review the district court’s interpretation of the Sentencing Guidelines de novo.” United States v. Herrera-Roldan, 414 F.3d 1238, 1240 (10th Cir.2005) (citing United States v. Castro-Rocha, 323 F.3d 846, 848-49 (10th Cir.2003)). If the statute of conviction is ambiguous, covering both violent and nonviolent crimes, we rely on the charging documents, as identified in Shepard, to assist in the determination, which in this case include Mr. Austin’s admissions at the plea and sentencing hearing. We agree with the district court that § 18-3-405 does not contain the elements outlined in § 4B1.2 because it does not require the “use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 4B1.2 cmt. n. 1. The government also does not suggest Mr. Austin’s statutory or admitted conduct fits within the expressly enumerated example of “forcible sex offenses” and therefore we do not address it. Rather, both parties concentrate on the second prong of § 4B1.2 to determine whether Mr. Austin’s prior conviction “otherwise involve[s] conduct that presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2). C. Tenth Circuit Court Precedent In asking us to make a per se determination that the nature of the crime at issue, sexual contact with a child under the age of fifteen, is inherently a “crime of violence,” the government relies on an array of Tenth Circuit cases, including United" } ]

[ { "docid": "1049740", "title": "", "text": "overruled the objection, adopted the findings of the PSR, and sentenced him to 96 months imprisonment and three years supervised release. This appeal follows. II. In reviewing a sentence under the sentencing guidelines, we review the interpretation or application of the guidelines de novo. United States v. Charles, 301 F.3d 309, 312-13 (5th Cir.2002)(en banc). Riva was sentenced under § 2K2.1(a)(2) of the Sentencing Guidelines, which provides for a base offense level of 24 if a defendant has at least two prior felony convictions for crimes of violence. That section adopts the definition of “crime of violence” as provided in U.S.S.G. § 4B1.2 and its commentary. The Government concedes that subsection (a)(1) of § 4B1.2 is inapplicable because “use of force” is not an element of the Texas crime of unlawful restraint. See Texas Pen.Code Ann. § 20.02 (Vernon 2002). Thus, the issue we must decide is whether unlawful restraint of a person less than 17 years of age is a crime of violence under the residual clause of § 4B1.2(a)(2) because it “otherwise involves conduct that presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2). In determining whether a prior conviction is a “crime of violence” under the residual clause of § 4B1.2(a)(2), this court takes a categorical approach and may only look to the relevant statute and in certain circumstances to the conduct alleged in the charging document. United States v. Charles, 301 F.3d 309, 313-14 (5th Cir.2002). Under Charles, a prior conviction is considered a crime of violence under the residual clause “only if, from the fact of the indictment, the crime charged or the conduct charged presents a serious potential risk of injury to a person. Injury to another need not be a certain result, but it must be clear from the indictment that the crime itself or the conduct specifically charged posed this serious potential risk.” Id. at 314. When a statute provides a list of alternative methods of committing an offense, we may look to the charging papers to determine by which method the crime was committed in a particular" }, { "docid": "3552776", "title": "", "text": "USSG § 4B1.2(a). The application notes to § 4B1.2(a) further provide that the term “crime of violence” includes: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included as “crimes of violence” if (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another. Id. § 4B1.2 cmt. n.l. “In determining whether a particular felony offense constitutes a crime of violence within the meaning of § 4B1.2, we employ a ‘categorical’ approach that omits consideration of the particular facts of the case.” United States v. Vigil, 334 F.3d 1215, 1218 (10th Cir.2003). Under the “categorical approach we consider the offense generically, that is to say, we examine it in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.” United States v. Rooks, 556 F.3d 1145, 1147 (10th Cir.2009) (quotation omitted). Applying this approach “[i]f the criminal statute setting out the predicate felony is ambiguous, or broad enough to encompass both violent and nonviolent crimes, we employ the so-called ‘modified categorical approach’ which allows analysis of certain records of the prior proceeding, such as the charging documents, the judgment, any plea thereto, and findings by the sentencing court.” Armijo, 651 F.3d at 1230 (quotation omitted). This review “does not involve a subjective inquiry into the facts of the case, but rather its purpose is to determine which part of the statute was charged against the defendant and, thus, which portion of the statute to examine on its face.” United States v. Charles, 576 F.3d 1060, 1067 (10th Cir.2009) (quotation omitted). In this case we apply the modified categorical approach because Texas law broadly defines aggravated assault to" }, { "docid": "6831760", "title": "", "text": "1.2(a) as it read at the relevant time explained that a: “Crime of violence” includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included as “crimes of violence” if (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted involved the use of explosives (including any explosive material or destructive device) or, by its nature, presented serious potential risk of physical injury to another. U.S.S.G. § 4B1.2, app. note 1 (2001). The District Court concluded that escape is neither an enumerated offense nor a crime that has the use of force as a necessary element under Pennsylvania law. It held, however, that the crime of escape, “by its nature, presentís] a serious potential risk of physical injury to another.” Luster emphasizes, as the government concedes, that he “simply absented himself from the place of confinement without being privileged to do so” and that “there was [no] violence involved with the actual escape.” App. at 21-22, 24. According to Luster, the District Court thus erred in failing to conclude that his escape did not involve a serious potential risk of physical injury. Based upon the Application Note’s express reference to “the conduct set forth (i.e., expressly charged) in the count of’ conviction, we have held that a sentencing court in applying the last clause of U.S.S.G. § 4B1.2(a)(2) should not look to all of the conduct underlying the defendant’s conviction. Rather, “a sentencing court should look solely to the conduct alleged in the count of the indictment charging the offense of conviction in order to determine whether that offense is a crime of violence.” United States v. Joshua, 976 F.2d 844, 856 (3d Cir.1992); see also United States v. Taylor, 98 F.3d 768 (3d Cir.1996). Here, the count of conviction charged in full as follows: The District Attorney of Allegheny County by this information charges that" }, { "docid": "12090649", "title": "", "text": "timely appeals. II We review the district court’s application of the Sentencing Guidelines de novo. United States v. Sanchez-Ramirez, 497 F.3d 531, 534 (5th Cir.2007). USSG § 2K2.1(a)(4)(A) sets the base offense level at 20 for defendants who have committed the instant offense subsequent to a felony conviction for a crime of violence. The Guideline adopts the definition of “crime of violence” set out in USSG § 4B1.2: (a) The term “crime of violence” means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that— (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. The Commentary to § 4B1.2 provides: “Crime of violence” includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included as “crimes of violence” if (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another. [Emphasis added]. Thus, in order to be found a crime of violence under § 4B1.2, an offense must do one of the following: (1) contain as a statutory element the “use, attempted use, or threatened use of physical force against the person of another”; (2) belong to the list of enumerated offenses; (3) or fall under the “residual clause” of § 4B1.2(a)(2) by presenting a “serious risk of physical injury to another.” It is the residual clause that is at issue here; the parties dispute whether Mohr’s convictions for stalking qualify as crimes of violence because they posed a serious risk of physical injury to" }, { "docid": "1298315", "title": "", "text": "gloss on the term “crime of violence.” Application Note 1 provides: Crime of violence includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included as crimes of violence if (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another. Id. (internal quotation marks omitted). With this commentary in mind, we now turn to consider the crime at issue' — possession of a prohibited weapon, specifically a sawed-off shotgun. To obtain a felony conviction for this crime, the state had to prove that Serna “knowingly” possessed a sawed-off shotgun. Tex. Penal Code § 46.05(a)(3). For this crime to constitute a crime of violence under federal law, it must fall within the “otherwise” clause of § 4B1.2(a)(2) and Application Note 1; that is, unlawful possession of a prohibited weapon must “present[ ] a serious potential risk of physical injury to another.” Id. In making this “risk” assessment, we take a categorical approach. Such an approach examines the conduct as alleged in the indictment and decides whether that conduct, by its nature, poses a serious potential risk of physical injury. See United States v. Charles, 301 F.3d 309 (5th Cir.2002)(en banc); United States v. Fitzhugh, 954 F.2d 253, 254 (5th Cir.1992); U.S.S.G. § 4B1.2, app. n. 1. Under this approach, we do not consider the underlying conduct of the crime charged unless it is specifically referenced in the indictment. See United States v. Ruiz, 180 F.3d 675, 676 (5th Cir.1999) (holding that an escape from prison was a crime of violence even though the defendant “simply walked away ... no physical barriers prevented the escape and no guards were armed”). Serna’s state court indictment reads as follows: ... RUBEN SERNA, JR. hereinafter styled" }, { "docid": "21391374", "title": "", "text": "point of comparison is the phrase “crime of violence,” as used in the Sentencing Guidelines. As will become important in this case, different guideline provisions describe “crime of violence” differently. But Shell’s sentence was enhanced for a prior crime of violence under U.S.S.G. § 2K2.1, which defines that term by reference to the career-offender guideline, U.S.S.G. § 4B1.2. U.S.S.G. § 2K2.1 cmt. n. 1. Section 4B1.2, in turn, defines a crime of violence as: (a) ... any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that— (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. U.S.S.G. § 4B1.2(a). The commentary elaborates, in relevant part: “Crime of violence” includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. U.S.S.G. § 4B1.2 cmt. n. 1 (emphasis added). In its argument, the government skips past the text of § 4B1.2 to focus on its commentary, and in particular the phrase “forcible sex offenses.” But it is the text, of course, that takes precedence, see Stinson v. United States, 508 U.S. 36, 43, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993) (where commentary is inconsistent with text, text controls), and so that is where we begin. And like two other circuit courts, as well as our own court in an unpublished opinion, we conclude that of fenses that may be committed without physical force and predicated instead on the absence of legally valid consent — as under the North Carolina second-degree rape statute — are not categorically crimes of violence under either clause of § 4B1.2. See United States v. Wray, 776 F.3d 1182, 1187-91 (10th Cir.2015) (conviction for sexual assault with a 10-year age difference not categorically a crime of violence under § 4B1.2); United States v. Wynn, 579 F.3d 567, 572-75 (6th Cir.2009) (sexual battery" }, { "docid": "22955212", "title": "", "text": "provides for punishment of persons who engage in sexual acts with other persons if the other person is “incapable of appraising the nature of the conduct” or “physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act.” 18 U.S.C. § 2242. The statute also prohibits attempts to engage in sexual acts with persons incapable of appraising the act or communicating an unwillingness to participate. Id. The Sentencing Guidelines applicable to these two sections state categorically that, even though a touching or physical injury is not a required element of a violation of § 2242, “[sjexual offenses addressed in this section are crimes of violence. Because of their dangerousness, attempts are treated the same as completed acts of criminal sexual abuse.” U.S.S.G. § 2A3.1, cmt. background (emphasis added). This commentary also provides that “[a]ny criminal sexual abuse with a child less than twelve years of age, regardless of ‘consent,’ is governed by § 2A3.1 (Criminal Sexual Abuse).” Id. And any criminal sexual abuse is defined as crime of violence. Id. Similarly, a violation of 18 U.S.C. § 2243, which prohibits sexual abuse (or attempt) with a minor or ward, is characterized as a crime of violence by the Sentencing Guidelines as long as the victim has not attained the age of 12, regardless of any purported consent. See U.S.S.G. § 2A3.2 cmt. background. Accordingly, whether we look at North Carolina’s characterization of its indecent liberties statute which Pierce violated, or the federal characterization of an analogous federal law, the conclusion is the same that taking indecent liberties with a minor amounts to a crime of violence under U.S.S.G. § 4B1.1 because the offense involves “forcible sex” or “by its nature, presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2, cmt. n. 1. When a child is the victim of adult conduct, force can be inferred. Moreover, even if force and any resulting injury were not inferred, such child abuse by an adult would present a serious potential risk of physical injury to the child, a danger that is quite similar in character" }, { "docid": "23262193", "title": "", "text": "is not reliable. Accordingly, he. argues that because the government did not establish by competent evidence that he pleaded guilty to a particular subsection of the New York statute and because some subsections of the statute do not satisfy the definition of a crime of violence, the district court should not have imposed the enhancement. Indictment Neri contends that the district court erred in looking to the indictment (the charging document) in this case to determine the subsection of the statute under which he was convicted because Neri pleaded guilty to a different offense from that for which he was indicted, citing United States v. Turner, 349 F.3d 833 (5th Cir.2003). In Turner, this Court addressed what role the charging instrument should have upon a sentencing court’s analysis of whether a prior conviction was a crime of violence under U.S.S.G. § 4B1.2 where the defendant was convicted of a lesser included offense. 349 F.3d at 836. The commentary to § 4B1.2 specifically authorizes a sentencing court to consider whether “the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted ... by its nature, presented a serious potential risk of physical injury to another.” U.S. Sentencing Guideline Manual § 4B1.2, cmt. n. 1. But, because “Turner pleaded guilty to a lesser included offense, and was not rein-dicted on the lesser count,” this Court concluded that the district court could not rely on the conduct set forth in the indictment when making the § 4B1.2 determination. Turner, 349 F.3d at 836. In the instant case, the applicable guideline is § 2L1.2 which does not contain commentary similar to the § 4B1.2 commentary at issue in Turner. Compare U.S. Sentencing Guideline Manual § 4B1.2 with U.S. Sentencing Guideline Manual § 2L1.2. However, the same rule has been applied in cases addressing § 2L1.2. See United States v. Gonzalez-Ramirez, 477 F.3d 310 (5th Cir.2007) (because Gonzalez-Ramirez never pleaded guilty to the indictment charging aggravated kidnapping and rather pleaded guilty to attempted kidnapping, that indictment could not be used to determine whether Gonzalez-Ramirez’s conviction was a crime of violence" }, { "docid": "19926705", "title": "", "text": "the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. The application notes to the Guidelines further explain that: “Crime of violence” includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included as “crimes of violence” if (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (ie., expressly charged) in the count of which the defendant was convicted involved use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another. Id. § 4B1.2 cmt. n.l. Rodriguez-Jaimes contends that his pri- or conviction for possession of a deadly weapon in a penal institution does not qualify as a crime of violence because it does not meet either definition under U.S.S.G. § 4B1.2(a). The government concedes that Rodriguez-Jaimes’s prior conviction does not qualify as a crime of violence under U.S.S.G. § 4B1.2(a)(l) be cause the statute under which Rodriguez-Jaimes was convicted, Texas Penal Code § 46.10, does not have “as an element the use, attempted use, or threatened use of physical force against the person of another.” Instead, the government claims that Rodriguez-Jaimes’s prior conviction for possession of a deadly weapon in a penal institution falls within the “otherwise involves conduct that presents a serious potential risk of physical injury to another” clause of § 4B1.2(a)(2). Whether a defendant’s prior conviction can be classified as a crime of violence under the Sentencing Guidelines is a question of law. See United States v. Guevara, 408 F.3d 252, 259 (5th Cir.2005), cert. denied, - U.S. -, 126 S.Ct. 1080, 163 L.Ed.2d 898 (2006). We review the district court’s interpretation and application of the Guidelines de novo. Id. Under § 4B1.2(a)(2), “a categorical" }, { "docid": "22280725", "title": "", "text": "amendment a \"minor change[] ... to provide definitions....” U.S.S.G., Manual, App. C Supp., Amendment 632. Before amendment, § 2L1.2(b)(1)(A) provided sentence enhancement for a prior \"aggravated felony”. U.S.S.G., Manual (2000 ed.) \"Aggravated felony” was defined at 8 U.S.C. § 1101(a)(43)(A) to include \"sexual abuse of a minor”. The Commission's inclusion of sexual abuse of a minor as a \"crime of violence” in the 2001 amendment brings the definition into the guideline, instead of cross-referencing the United States Code. . The U.S.S.G. § 4B1.2 definition of \"crime of violence” is: any offense under federal or state law punishable by imprisonment for a term exceeding one year that— (i) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (ii) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. Application note 1 reads in pertinent part: \"Crime of violence” includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included as \"crimes of violence” if (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted ..., by its nature, presented a serious potential risk of physical injury to another. U.S.S.G. § 4B1.2(a) and comment, application note 1. . The Seventh Circuit was interpreting U.S.S.G. § 4B1.2. . Further, the commentary to both § 2L1.2 and § 4B1.2 is binding, and equivalent in force to the guideline language itself, as long as the language and the commentary are not inconsistent. Stinson v. United States, 508 U.S. 36, 42-3, 113 S.Ct. 1913, 1917-18, 123 L.Ed.2d 598 (1993). . Subparagraph II, in relevant part, reads \"includes ... forcible sex offenses (including sexual abuse of a minor)....\"" }, { "docid": "19918851", "title": "", "text": "will affirm the District Court’s sentence. A. Siegel’s sentence was calculated pursuant to the 2001 Sentencing Guidelines. According to § 4B1.2 of the Sentencing Guidelines, the section under which the District Court imposed the disputed criminal history point: The term “crime of violence” means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that— (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. U.S.S.G. § 4B1.2(a). The Commentary accompanying section 4B1.2 of the Guidelines provides further insight into the meaning of “crime of violence.” The Commentary defines “crime of violence” as follows: “Crime of violence” includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included as “crimes of violence” if (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another (emphasis added). U.S.S.G. § 4B1.2 n. 1. B. We have stated that when a sentencing court is determining whether a prior crime meets the test of § 4B1.2, it should begin with the language of the statute and if that is clear, it should not look beyond the statute’s text to the actual conduct. United States v. Shabazz, 233 F.3d 730, 732 (3d Cir.2000). We generally employ the “formal categorical approach,” announced in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), to determine whether an offense falls within the category of “crime of violence.” See Singh v. Ashcroft, 383 F.3d 144 (3d Cir.2004). Using that analysis, a" }, { "docid": "23572720", "title": "", "text": "offense under federal or state law, punishable by imprisonment for a term exceeding one year, that — • (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. U.S.S.G. § 4B 1.2(a) (2001). Application Note 1 to this section states: “Crime of violence” includes murder, manslaughter, kidnaping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included as “crimes of violence” if (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another. U.S.S.G. § 4B1.2, cmt. n.l (2001) (emphases added); see generally Huerta, 182 F.3d at 364 (“[CJommentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading, of that guideline.”). Subsection (a)(1) of § 4B1.2 is plainly inapplicable because “use of force” is not an element of the crime of statutory rape as defined by Texas. See Texas Penal Code Ann. § 22.011(a)(2) (Vernon 2003) (prohibiting consensual sexual contact with, or penetration of, a person under 17 years old); see also Hernandez v. State, 861 S.W.2d 908, 909 (Tex.Crim.App.1993) (“[Wjhen prosecuting via [§ 22.011(a)(2)], consent (or nonconsent) is not an element.”). Thus, the Government’s claim that statutory rape is a crime of violence hinges on the applicability of § 4B1.2(a)(2). “[A] crime is a crime of violence under § 4B1.2(a)(2) only if, from the face of the indictment, the crime charged or the conduct charged presents a serious potential risk of [physical] injury to" }, { "docid": "22435525", "title": "", "text": "as any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that— (1) has as an element the use, attempted use, or threatened use of physical force against the person of another [(“the elements clause”)], or (2) is burglary of a dwelling, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another [(“the residual clause”)]. U.S.S.G. § 4B1.2(a). Commentary to the Guidelines provides further definitional guidance: For purposes of this guideline— U.S.S.G. § 4B1.2, comment. (n.1) (emphasis added). We recognize that this definition is disjunctive. For that reason, a prior conviction qualifies as a “crime of violence” if any of the following are true: (1) the defendant was convicted of committing, aiding or abetting the commission of, conspiring to commit, or attempting to commit, an enumerated offense; (2) the use, attempted use, or threatened use of physical force against another was an element of the offense; or (3) the conduct for which the defendant was convicted presented a serious risk of physical injury to another person. See, e.g., United States v. Wilson, 392 F.3d 1243, 1245-46 (11th Cir.2004) (interpreting the nearly-identical “crime of violence” provision in U.S.S.G. § 2L1.2 in the disjunctive). “Crime of violence” and “controlled substance offense” include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses. “Crime of violence” includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included as “crimes of violence” if (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious risk of physical injury to another. The Government proceeds under all three avenues. We will consider them in turn, beginning with the proposition that Lockley’s prior attempted" }, { "docid": "16484556", "title": "", "text": "crime involves conduct that presents a serious potential risk of physical injury to another.” United States v. Phelps, 17 F.3d 1334, 1342 (10th Cir.1994). Under Oklahoma law: Sexual battery shall mean the intentional touching, mauling or feeling of the body or private parts of any person sixteen (16) years of age or older, in a lewd and lascivious manner and without the consent of that person. Okla. Stat. Ann. tit. 21, § 1123(B). The government concedes that sexual battery does not satisfy § 4B1.2(a)(l), because it does not have “as an element the use, attempted use, or threatened use of physical force against the. person of another.” USSG § 4B1.2(a)(l). However, the government urges us to hold that § 4B1.2(a)(2) encompasses Oklahoma’s definition of sexual battery because sexual battery “presents a serious potential risk of physical injury to another.” Id. § 481.2(a)(2). Mr. Rowland counters by emphasizing the ambiguity of the statute: sexual battery can be the mere nonconsensual touching of an arm or a leg in a lewd and lascivious manner. Such contact entails neither violence nor serious potential risk of injury. To allow “[a]n inference of violence from mere unconsented-to physical contact .... would transform any uncon-sented-to touching ... into a crime of violence.” United States v. Shannon, 110 F.3d 382, 385 (7th Cir.1997) (en banc). He urges us to look to the charging documents and examine the “ ‘nature’ of the criminal conduct in reaching an answer.” Aplt’s Br. at 8 (citing United States v. Mitchell, 113 F.3d 1528, 1533 (10th Cir.1997) (after looking at the charging documents, we held that defendant’s “two prior escape convictions by their nature involved conduct that presented a serious potential risk of physical injury”); and United States v. Gosling, 39 F.3d 1140, 1142 n. 3 (10th Cir.1994) (examining the charging documents and concluding that the offense of escape “by its nature presented a serious potential risk of physical injury to another and thus is properly characterized as a crime of violence”)). Mr. Rowland also suggests that, unlike the Ohio statute referred to by the district court, the Oklahoma statute requires no" }, { "docid": "23567751", "title": "", "text": "section 4B1.2(l)(ii) indicates that only burglaries of dwellings, not all burglaries, should be considered crimes of violence per se. Thus Marlon Wilson’s prior commercial burglary conviction, under a statute which specifically excludes residential burglary, cannot be included within the specifically enumerated felony “burglary of a dwelling.” Nonetheless, the “otherwise clause” leaves open the possibility that burglaries of structures other than dwellings could fall within the definition of a crime of violence if the crime, “otherwise involves conduct that presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(l)(ii). The plain language of application note 2 supports this interpretation. The commentary reads: “Crime of violence” includes murder, manslaughter, kidnaping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included where (A) that offense has as an element the use, attempted use or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives ... or, by its nature, presented a serious potential risk of physical injury to another. Under this section the conduct of which the defendant was convicted is the focus of inquiry. U.S.S.G. § 4B1.2 (application note 2)(empha-sis added). A straightforward reading of the application note suggests that other offenses fall within the definition of a crime of violence where the crime, by its nature, creates a serious potential risk of injury to another person. Therefore, where a defendant commits an offense that involves such conduct, that offense could be covered by the otherwise clause without being a felony specifically mentioned by that section or that section’s application note. In such cases, it is possible that the burglary of a non-dwelling may be a crime of violence. In United States v. Arnold, 58 F.3d 1117 (6th Cir.1995), which circumscribed the ability of a sentencing court to consider the facts of a Defendant’s prior conviction, we suggested that where a statute does not clearly establish that the offense involves the ‘use, attempted use, or threatened" }, { "docid": "11353253", "title": "", "text": "conduct was criminal and deserving of punishment under Oklahoma law, it should not be considered a “crime of violence” sufficient to serve as a predicate offense for his deportation. The government, for its part, argues that Zaidi’s conviction comes within both definitions of a crime of violence under 18 U.S.C. § 16 because the Oklahoma offense of sexual battery has “as an element the use ... of physical force against the person ... of another” and because a violation of the statute, by its nature, also presents “a substantial risk that physical force against the person ... of another may be used in the course of committing the offense.” The Tenth Circuit recently held that the Oklahoma sexual battery statute may serve as a predicate offense for the crime of violence enhancement contained in Section 4B1.2 of the United States Sentencing Guidelines. See United States v. Rowland, 357 F.3d 1193, 1195-98 (10th Cir.2004). In that case, the Tenth Circuit held that sexual battery, by its nature, presents a serious potential risk of injury to another. Id. at 1198. In this case we confront a different standard — whether the offense of sexual battery under Oklahoma law creates a substantial risk that physical force may be used against another. We have little difficulty in concluding that it does. In Rowland, the Tenth Circuit noted that a conviction under the Oklahoma statute presupposes “the intentional sexual touching of another with a particular mental state and without consent” and held that such a touching “represents a particular subset of battery.” Id. at 1197 (quoting Okla. Stat. Ann. tit. 21, § 642). Further, “[b]ecause the statute at issue here presupposes a lack of consent, it necessarily carries with it a risk of physical force.” Id. By analogy, we believe that the risk that physical force will be used to complete the offense of sexual battery is substantial. See also Sutherland v. Reno, 228 F.3d 171, 176 (2nd Cir.2000) (indecent assault and battery under Massachusetts law qualified as a crime of violence because “any violation of [the Massachusetts statute], by its nature, presents a substantial" }, { "docid": "3552775", "title": "", "text": "unless it is an intentional crime — criminal recklessness is insufficient. United States v. Armijo, 651 F.3d 1226, 1237 (10th Cir.2011). The district court did not have the benefit of Armijo in considering whether Texas law did or did not allow for a mens rea of recklessness. We thus must answer that question in this appeal. II. Analysis Whether a statute defines a “crime of violence” for purposes of USSG § 4B1.2 is a question of statutory construction, which we review de novo. United States v. Riggans, 254 F.3d 1200, 1203 (10th Cir. 2001). A. Evaluating Crimes of Violence Under the Sentencing Guidelines, the terra “crime of violence” means “any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that”— (1) has as an element the use, attempted use, or threatened use of physical force against the pei*son of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. USSG § 4B1.2(a). The application notes to § 4B1.2(a) further provide that the term “crime of violence” includes: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included as “crimes of violence” if (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another. Id. § 4B1.2 cmt. n.l. “In determining whether a particular felony offense constitutes a crime of violence within the meaning of § 4B1.2, we employ a ‘categorical’ approach that omits consideration of the particular facts of the case.” United States v. Vigil, 334 F.3d 1215, 1218 (10th Cir.2003). Under the “categorical approach we consider the offense generically, that is to say, we examine" }, { "docid": "19918852", "title": "", "text": "has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another (emphasis added). U.S.S.G. § 4B1.2 n. 1. B. We have stated that when a sentencing court is determining whether a prior crime meets the test of § 4B1.2, it should begin with the language of the statute and if that is clear, it should not look beyond the statute’s text to the actual conduct. United States v. Shabazz, 233 F.3d 730, 732 (3d Cir.2000). We generally employ the “formal categorical approach,” announced in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), to determine whether an offense falls within the category of “crime of violence.” See Singh v. Ashcroft, 383 F.3d 144 (3d Cir.2004). Using that analysis, a court “must look only to the statutory definitions” of the specified offense, and may not “consider other evidence concerning ... the particular facts underlying [a] conviction[ ].” Taylor, 495 U.S. at 600, 110 S.Ct. 2143. We apply that approach unless (1) “the language of the particular state statute at issue invite[s] inquiry into the underlying facts of the case,” or (2) “the disjunctive phrasing of the statute similarly invites inquiry into the specifics of the conviction.” Singh, 383 F.3d at 148; see also Garcia v. Atty. Gen., 462 F.3d 287, 293 (3d Cir.2006) (citing Singh, 383 F.3d at 161). Statutory phrases that have “relatively unitary categorical concepts” like “forgery,” “burglary,” “crime of violence,” and “illicit trafficking in a controlled substance” do not invite an inquiry into the facts underlying the conviction. Joseph v. Atty. Gen., 465 F.3d 123, 127 (3d Cir.2006) (citing Garcia, 462 F.3d at 290). C. Under the categorical approach, we begin our analysis with the Pennsylvania statute, which defines indecent assault as follows: A person is guilty of indecent assault if the" }, { "docid": "22955213", "title": "", "text": "a violation of 18 U.S.C. § 2243, which prohibits sexual abuse (or attempt) with a minor or ward, is characterized as a crime of violence by the Sentencing Guidelines as long as the victim has not attained the age of 12, regardless of any purported consent. See U.S.S.G. § 2A3.2 cmt. background. Accordingly, whether we look at North Carolina’s characterization of its indecent liberties statute which Pierce violated, or the federal characterization of an analogous federal law, the conclusion is the same that taking indecent liberties with a minor amounts to a crime of violence under U.S.S.G. § 4B1.1 because the offense involves “forcible sex” or “by its nature, presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2, cmt. n. 1. When a child is the victim of adult conduct, force can be inferred. Moreover, even if force and any resulting injury were not inferred, such child abuse by an adult would present a serious potential risk of physical injury to the child, a danger that is quite similar in character to the potential injury to persons involved in arson or burglary, both of which are specifically recognized as crimes of violence. The injury that sex abuse of children offers is not only a serious potential risk, but it is the very risk at which the North Carolina statute prohibiting indecent liberties with children is aimed. Consequently, we conclude that a violation of that statute is categorically a crime of violence. In reaching this conclusion, we join every other circuit that has considered the question, even though the underlying factual circumstances in those cases involved either a sexual touching or a statute that required a sexual touching. See United States v. Meader, 118 F.3d 876, 885 (1st Cir.1997) (holding that statutory rape offense was a crime of violence for career offender purposes); United States v. Kirk, 111 F.3d 390, 395-96 (5th Cir.1997) (holding that conviction of indecency with a child involving sexual contact is a crime of violence); United States v. Shannon, 110 F.3d 382, 389 (7th Cir.1997) (en banc) (holding that second degree sexual assault" }, { "docid": "1049746", "title": "", "text": "recklessly exposes the victim to a substantial risk of serious bodily injury ...” Tex. Pen.Code Ann. § 20.02(a) (Vernon 2002). \" 'Restrain' means to restrict a person's movements without consent, so as to interfere substantially with the person's liberty by moving the person from one place to another or by confining the person. Restraint is 'without consent’ if it is accomplished by: (A) force, intimidation, or deception.” Tex. Pen.Code Ann. 20.01 (Vernon 2002). . Section 4B 1.2(a) defines \"crime of violence” as: [A]ny offense under federal or state law, punishable by imprisonment for a term exceeding one year, that— (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. U.S.S.G. § 4B1.2(a) (emphasis added). The commentary further provides: \"Crime of violence” includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included as \"crimes of violence” if (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another. U.S.S.G. § 4B1.2 (application note 1). . Although not raised by the parties, we note that the Texas statute for unlawful restraint of a child under the age of 17 can also be accomplished disjunctively by either 1) moving the person from one place to another or 2)confining the person. As discussed above, we may look to the conduct in the indictment to determine which disjunctive element the defendant committed. See Calderon-Pena, 383 F.3d at 258. The allegation of the information charging Riva with locking a child in a closet, makes it clear that the" } ]

[ { "docid": "22596293", "title": "", "text": "chemical wastes, United States v. Conservation Chemical Co., 619 F.Supp. 162, 182-83 (W.D.Mo.1985), that ethyl-benzene and xylene are hazardous substances when constituents of coal tar, United States v. Union Gas Co., 586 F.Supp. 1522, 1523 (E.D.Pa.1984), and that lead is a hazardous substance when it is a component of water-based paint, United States v. Carolawn Co., 21 E.R.C. 2124, 2125-26 (D.S.C.1984). Plaintiffs argue therefrom: “[That] those same specifically listed substances would not be considered hazardous if released as a result of leaking underground gasoline storage tanks ... cannot be what Congress intended. Such an interpretation would render meaningless the exception to the petroleum exclusion.” However, there are no exclusions in CERCLA similar to the petroleum exclusion for chemical wastes, coal tar and water-based paints. Consequently, plaintiffs’ reliance on these cases to support their construction is misplaced. Moreover, because all of the substances complained of herein and designated as hazardous pursuant to other statutes are indigenous to crude oil, see discussion supra, the construction advocated by plaintiffs would have the effect of rendering the petroleum exclusion a nullity because all crude oil, petroleum and petroleum fractions, unrefined or refined, would fall outside its ambit. While plaintiffs contend that their construction of the plain meaning of the petroleum exclusion would still leave some substances within its scope, e.g., unrefined oil and other petroleum products that do not contain constituents added or created during the refining process, the distinction between those substances which are added to a petroleum product and those substances which may be indigenous to petroleum is nonsensical because all of the substances plaintiffs allege were additives to the gasoline also exist as indigenous components of crude oil. 2. Legislative History. Although our conclusion regarding the plain meaning of the scope of the petroleum exclusion makes unnecessary resort to the next step in statutory construction, legislative history, Blum v. Stenson, 465 U.S. 886, 896, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984), we are persuaded that the legislative history supports our plain meaning construction. There is virtually no legislative history contemporaneous with the enactment of CERCLA directly relevant to the scope" } ]

[ { "docid": "5691540", "title": "", "text": "Inc., 761 F.Supp. 713 (W.D.Wash.1991) (waste oil resulting from rinsing and cleaning oil tanks is not within petroleum exclusion because it contains nickel and chromium oxides that are scraped from the tanks’ interior and added to the waste oil during the cleaning process); United States v. Alcan Aluminum Corp., 755 F.Supp. 531, 539 (N.D.N.Y.1991) (petroleum exclusion does not cover con- taminants added to oil through use); New York v. Exxon Corp., 744 F.Supp. 474, 489-490 (S.D.N.Y.1990) (petroleum exclusion does not encompass waste oil in which the concentration of hazardous substances is increased through use). Washington v. Time Oil Co., 687 F.Supp. 529, 531-532 (W.D.Wash.1988) (hazardous substances found in excess of concentrations occurring naturally in petroleum during refining process and others not normally found in refining are not within petroleum exclusion); Philadelphia v. Stepan Chemical Co., 1988 WL 136530, 1988 U.S.Dist.LEXIS 14219 (E.D.Pa.1988). The Plaintiffs’ own expert witness states in his affidavit that the benzene, toluene, ethyl toluene, and xylene contaminated the soil as a result of refined gasoline leaking into the ground both from the underground storage tanks and in the area of the gas pumps. (Affidavit of Keith Gadway, Exhibit E to Plaintiffs’ Brief, Par. 3, p. 2). Although these compounds are otherwise “hazardous substances,” each of them is an inherent, indigenous component of gasoline. Wilshire Westwood, 881 F.2d, at 803. Therefore, these components come within the petroleum exclusion and are excluded from CERCLA coverage. Id., at 805. The Plaintiffs discredit the holding of the Wilshire Westwood court as an “aberration” and invite the Court to disregard that decision as contrary to the “plain meaning” of Section 6907(14). However, the Court in Wilshire Westwood undertook its own thorough analysis and concluded that its interpretation does constitute the “plain meaning” of the words of the statute. Id., at 803-805. Further, the court noted that its interpretation is fully consistent with the legislative history and EPA interpretation. Id., at 805-810. Further, as noted, the Wilshire Westwood interpretation of the petroleum exclusion is consistent with other court interpretations. The legislative purpose behind the petroleum exclusion is simply that Congress did not intend" }, { "docid": "22596285", "title": "", "text": "identified in paragraph 6 ... are hazardous substances within the meaning of Section 101(14) of CERC-LA, 42 U.S.C. § 9601(14)” and that “[tjhere have been releases or threatened releases of hazardous substances, including, but not limited to, those identified in paragraph 6 ... into the environment ... within the meaning of Section 101(22) of CERCLA, 42 U.S.C. § 9601(22). The district court initially denied motions made pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure to dismiss plaintiffs’ claim under CERCLA, ruling in pertinent part: (1) CERCLA’s petroleum exclusion covers gasoline as well as its hazardous constituents: benzene, ethylbenzene, toluene and xylene, although said constituents are specifically listed as hazardous substances under CERCLA. This is because whether or not these constituents are fractions of petroleum, to interpret the petroleum exclusion otherwise would render the exclusion meaningless since it would result in no petroleum products coming under the petroleum exclusion. (2) CERCLA’s petroleum exclusion does not cover leaded gasoline because (a) Lead is an additive to gasoline; it is not ‘petroleum, including crude oil or any fraction thereof ... ’ (b) Lead is specifically listed as a hazardous substance under CERCLA. (c) There is no reason to treat lead differently when it is released as a part of gasoline from when it is released in any other form. See United States v. Carolawn Co., 14 Envtl.L. Rep. 20696 (D.S.C. June 15, 1984) (lead is a hazardous substance when released in water-based paint). The district court subsequently reconsidered this ruling upon motion because of a memorandum dated July 31, 1987 from the General Counsel of the Environmental Protection Agency to the Assistant Administrator for Solid Waste and Emergency Re sponse. Based on this memorandum, the district court ruled on reconsideration that GERCLA’s petroleum exclusion applies to leaded gasoline and dismissed plaintiffs’ claim under CERCLA. Plaintiffs appeal. The issue presented in this appeal is whether the exclusion from the definition of “hazardous substances” in CERCLA for “petroleum, including crude oil and any fraction thereof not specifically listed as a hazardous substance” includes refined gasoline and all of its components and additives. B.Request for" }, { "docid": "20181744", "title": "", "text": "acknowledged) the congressional debates clearly indicate were intended to fall outside the petroleum exclusion. Here the wastes in question are contaminated wastes, not petroleum products. The CERCLA exclusion does not apply- Boeing argues that GATX has not rebutted Boeing’s evidence that GATX’s sludge contained concentrations of PAHs and lead exceeding those normally found in refined petroleum fractions, nor can it. GATX argues that any reading of the petroleum exclusion that does not include petroleum sludge simply because of increased levels of PAHs from the rust in the storage tanks would render the petroleum exclusion a nullity. But this reading has been adopted by the EPA and upheld by the Courts: We believe that an interpretation of “petroleum” to include only indigenous, refinery-added hazardous substances is the interpretation of this provision which is most consistent with Congressional intent. The language of the provision, its explanation in the legislative history, and the Congressional debates on the final Superfund bill clearly indicate that Congress had no intention of shielding from Superfund response and liability hazardous substances merely because they are added, intentionally or by use, to petroleum products. EPA memorandum at 6; see also, Exxon, 744 F.Supp. at 490. That this renders the petroleum exclusion a nullity was rejected by EPA: [T]he argument has been made that this interpretation narrows the petroleum exclusion to the extent that it has become virtually meaningless.... However, this interpretation leaves a significant number of petroleum spills outside the reach of CERCLA. Spills or releases of gasoline remain excluded from CERCLA under the petroleum exclusion. EPA memorandum at 9. Since GATX has not rebutted Boeing’s evidence of elevated concentrations of PAHs and lead in its wastes, Boeing is entitled to summary judgment. GATX has attempted to rebut evidence that GATX’s sludge contained chromium and nickel oxides through the affidavit of its expert, Richard Poulson. Poulson states that other petroleum tanks that he has examined were made of carbon steel containing no chromium and nickel, that he is not aware of any steel petroleum storage tanks made with chromium or nickel, and that he finds it unlikely that a" }, { "docid": "20181742", "title": "", "text": "petroleum exclusion would strip that exclusion of its meaning. Boeing Reply Boeing argues that GATX has not rebutted the argument that its wastes are sludge and washwater, not petroleum, and that they contain levels of hazardous substances above what would normally occur in petroleum products. GATX argues that its wastes are fractions of petroleum. Boeing argues, however, that a standard chemical dictionary defines petroleum fractions as usable petroleum products which are derived by ‘cracking’ or distilling crude oil. See Hawley’s Condensed Chemical Dictionary, 540, 892 (11th ed. 1987). Hawley’s also states that the most important petroleum fractions, obtained by cracking, include various hydrocarbon gases, naphtha, gasoline, kerosene, fuel oils, gas oil, lubricating oils, paraffin wax, and asphalt. Id. 892. The GATX sludge is not obtained by the distillation process; rather, it is a mixture of corrosion products (primarily rust) and solids that settle from the petroleum products stored in the tanks. The GATX sludge is not a product of distillation and does not fit the definition of a petroleum fraction. Concerning Senator Simpson’s statement during Congressional debates on SARA, the EPA, charged with developing and administering CERCLA’s regulatory program, rejected Senator Simpson’s view. EPA regulations specifically list “tank bottoms (leaded) from the petroleum refining process” as hazardous substances falling outside of the exclusion. See 40 C.F.R. § 261.32 (referring to listing K052). These properly promulgated regulations control over the stated views of one legislator. GATX’s effort to characterize Wilshire Westwood as determinative of the issue herein is still unavailing, argues Boeing, as GATX’s sludge is not gasoline or gasoline with additives, but is nonuseable nonpetro-leum waste contaminated with the hazardous constituents of petroleum and by other hazardous substances. Neither CERCLA, EPA regulations, or any court case supports GATX’s claim that contaminated wastes having no marketable value as petroleum products fall within the petroleum exclusion. Concerning GATX’s criticism of Boeing’s cited case law, Boeing agrees that the cases do not involve sludge, but present a closer question because they involved petroleum products, albeit products that had become contaminated. They involved contaminated oil slicks, PCB’s in waste oil, which (as GATX has" }, { "docid": "20181735", "title": "", "text": "mixed with other hazardous substances. Id. at 669). Boeing argues that even if GATX’s wastes could be considered petroleum, which they are not, they would not fall within the petroleum exclusion because they contained hazardous substances that (a) are not normally found in gasoline and (b) are in concentrations higher than normally found in gasoline. Boeing points to a memorandum dated July 31, 1987 wherein the EPA’s Office of General Counsel concluded that “contaminants” in petroleum are not within the petroleum exclusion. (Exhibit E to the Starrs affidavit.) The EPA defined “contaminants” as “substances not normally found in refined petroleum fractions or present at levels which exceed those normally found in such fractions.” EPA Memorandum at 1. See also New York City v. Exxon Corp., 744 F.Supp. 474, 489, 31 Env’t Rep. Cas. (BNA) 1963, 1976 (S.D.N.Y.1990) (quoting the EPA Memorandum). Boeing states that the EPA memorandum should be given considerable deference by this Court because the Ninth Circuit in Wil-shire Westwood specifically referenced this memorandum when it stated that “the EPA’s interpretation of the scope of the petroleum exclusion is entirely consistent with its plain meaning and legislative history and constitutes highly persuasive evidence that our interpretation is correct.” 881 F.2d at 808. Most of GATX’s sludge, approximately 67 drums, came from leaded gasoline tanks, 12 from a diesel oil tank, and some amount from an unleaded gasoline tank. (Supp.Ans. of GATX, Exhibit F to the Starrs affidavit.) The sludge was removed, and the tanks were washed to clean out the remainder. (Haworth Dep. at 26.) The sludge contained a rust-like scale of corrosion products from the oxidation of steel in the tank walls. (Haworth dep. 17-19; and other deps., listing omitted.) Because the steel tanks contained chromium, nickel, and other metals, this scale contained oxides of chromium, nickel, and other metals. (Meyer Affidavit at ¶ 12.) Chromium and nickel are listed as hazardous substances under CERCLA. Gasoline typically contains little or no chromium and nickel, and here, gasoline is not the source of the chromium and nickel oxides. Thus, the sludge contained hazardous substances not normally found in" }, { "docid": "13864835", "title": "", "text": "among the substances released. Declaration of Jill P. Slater at p. 3 and Exhibit 2. Defendants, relying on the so-called “petroleum exclusion,” contend that there was no release of a “hazardous substance” within the meaning of the Act at the site. Accordingly, defendants argue they have no CERCLA liability for the costs of the cleanup. CERCLA defines “hazardous substance” by reference to substances listed under various other federal statutes. Under the statute, however, “petroleum, including crude oil or any fraction thereof” is not a “hazardous substance.” 42 U.S.C. § 9601(14) . Plaintiff contends that because the wastes consisted of adulterated petroleum, the exclusion does not apply. The initial question tendered is whether adulterated petroleum and diesel oil fall within the petroleum exclusion. The issue raises a question of statutory interpretation. As with any matter of statutory interpretation, “the first step a district court must take ... is to determine if there is binding authority construing the statute,” Cervantez v. Sullivan, 719 F.Supp. 899, 909 (E.D.Cal.1989). In the matter at bar, no such authority exists. The Supreme Court has not had occasion to address the scope of the petroleum exclusion, and although the Ninth Circuit has examined the relevant statute, it has not resolved the issue. The Circuit has held that the petroleum exclusion extends to contamination resulting from an underground storage tank leak of unadulterated refined and unrefined gasoline and its constituents, benzene, toluene, ethyl-benzene, xylene and lead. Wilshire Westwood Associates v. Atlantic Richfield Corp., 881 F.2d 801, 805 (9th Cir.1989). The court, however, expressly declined to decide whether the petroleum exclusion covers not only “unadulterated petroleum fractions but also those which have been contaminated during use.” Wilshire Westwood Associates, 881 F.2d at 805 n. 5. In the absence of a definitive construction, I next turn to the plain words of the statute. Cervantez, 719 F.Supp. at 910. CERCLA does not define the term .“petroleum.” By virtue of that silence, the exclusion is as susceptible to a reading including as excluding adulterated petroleum products. Given the absence of binding authority and plain meaning, I turn to “the traditional signposts of" }, { "docid": "23277350", "title": "", "text": "telephone number that was provided. Due process requires no more. IV. The objectors next dispute the district court’s grant of summary judgment for Amoco on the claim that the class made under CERCLA. Assuming, arguendo, that the objectors may properly raise this issue in an appeal from the approval of a class action settlement, we find that the district court’s grant of summary judgment to Amoco on that claim was proper. CERCLA generally provides a cause of action to a private person, see 42 U.S.C. § 9659(a)(1), seeking relief from another person, see 42 U.S.C. § 9607(a), who has caused a “hazardous substance,” see 42 U.S.C. § 9601(14), to pollute an area. The plaintiffs’ CERCLA claim alleged that Amoco had caused hazardous substances to contaminate property owned by the class members. The statute, however, specifically excludes “petroleum” from the definition of “hazardous substance.” See id. This “petroleum exclusion” has been interpreted to apply to “unrefined and re fined gasoline even though certain of its indigenous components and certain additives during the refining process have themselves been designated as hazardous substances.” Wilshire Westwood Associates v. Atlantic Richfield Corp., 881 F.2d 801, 810 (9th Cir.1989); see also Cose v. Getty Oil Co., 4 F.3d 700, 704 (9th Cir. 1993). The district court found that all of the contaminants involved in this case fell within the petroleum exclusion, and therefore that the class had no cause of action against Amoco under CERCLA. We review a grant of summary judgment de novo, and draw all reasonable inferences in favor of the nonmoving party. See Wallin v. Minnesota Department of Corrections, 153 F.3d 681, 686 (8th Cir .1998). In our case, experts retained by both sides stated that the pollution plume consisted of refined and unrefined petroleum hydrocarbon products. Although the class provides some evidence that various hazardous substances are found in the soil, it fails to offer any evidence to refute the findings of Amoco’s expert and of its own expert that the hazardous substances found are constituents of crude oil or refined petroleum products. On appeal the objectors contend that the hazardous substances" }, { "docid": "20181730", "title": "", "text": "ORDER DENYING GATX’S MOTION FOR SUMMARY JUDGMENT AND GRANTING BOEING’S MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST GATX McGOVERN, District Judge. INTRODUCTION The issues addressed in this order arise from several motions. First, GATX moved for summary judgment. Boeing then responded by filing its own cross-motion for partial summary judgment against GATX. GATX then filed its reply in support of its own motion and responding to the arguments made in Boeing’s Response/Cross-Motion. Boeing then filed its reply. GATX then filed its motion to strike exhibits to Boeing’s reply brief, or alternatively for leave to file supplemental pleading, i.e., the memorandum in support of the motion to strike. The Court will first summarize the arguments presented then proceed with its analysis and conclusion. MOTION OF GATX GATX seeks dismissal from this lawsuit, dismissal of the claims against it with prejudice, and judgment pursuant to Fed.R. Civ.P. 54(b). This summary judgment is sought based on GATX’s contention that petroleum was the only GATX-generated waste that ended up at Western Processing, and the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) specifically excludes such waste from its coverage. GATX contends that the sludge consisting of petroleum residue, sand, and rust from its petroleum storage tanks, which was removed by Ryan & Haworth, a tank cleaning company, and disposed of at Western Processing, is excluded from CERCLA coverage by the “petroleum exclusion.” The exclusion of petroleum is found in the definition section where the term “hazardous substance” is defined: ... The term [hazardous substance] does not include petroleum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance.... 42 U.S.C. § 9601(14). GATX argues that the petroleum exclusion applies to petroleum and all of its components and additives, citing Wilshire Westwood Associates v. Atlantic Richfield Corp., 881 F.2d 801 (9th Cir.1989). The Wilshire court analyzed the plain meaning of the statute, post-enactment legislative history, and the EPA’s interpretation to arrive at its conclusion: We rule that the petroleum exclusion in CERCLA does apply to unrefined and refined gasoline even though certain of its indigenous components and" }, { "docid": "20181731", "title": "", "text": "Act (CERCLA) specifically excludes such waste from its coverage. GATX contends that the sludge consisting of petroleum residue, sand, and rust from its petroleum storage tanks, which was removed by Ryan & Haworth, a tank cleaning company, and disposed of at Western Processing, is excluded from CERCLA coverage by the “petroleum exclusion.” The exclusion of petroleum is found in the definition section where the term “hazardous substance” is defined: ... The term [hazardous substance] does not include petroleum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance.... 42 U.S.C. § 9601(14). GATX argues that the petroleum exclusion applies to petroleum and all of its components and additives, citing Wilshire Westwood Associates v. Atlantic Richfield Corp., 881 F.2d 801 (9th Cir.1989). The Wilshire court analyzed the plain meaning of the statute, post-enactment legislative history, and the EPA’s interpretation to arrive at its conclusion: We rule that the petroleum exclusion in CERCLA does apply to unrefined and refined gasoline even though certain of its indigenous components and certain additives during the refining process have themselves been designated as hazardous substances within the meaning of CERCLA. 881 F.2d at 810. The Court reasoned that, pursuant to the standards of statutory construction, the petroleum exclusion requires us to exclude gasoline, even leaded gasoline, from the term “hazardous substance” for purposes of CERCLA. Any other construction ignores the plain language of the statute and renders the petroleum exclusion a nullity. 881 F.2d at 804. The court also noted that the Superfund Amendments and Reauthorization Act of 1986 (SARA), created a separate response program for petroleum leaking from underground storage tanks. Thus, under these authorities, argues GATX, since it only produced petroleum waste that was deposited at Western Processing, it should be dismissed from this case. After dismissing the federal claims, the court will then lack jurisdiction over the pending state claims, and they should be dismissed as well. MOTION OF BOEING Boeing argues that GATX’s motion should be denied because GATX’s wastes were sludge and rinse water containing hazardous substances, and not petroleum; GATX’s wastes" }, { "docid": "20181732", "title": "", "text": "certain additives during the refining process have themselves been designated as hazardous substances within the meaning of CERCLA. 881 F.2d at 810. The Court reasoned that, pursuant to the standards of statutory construction, the petroleum exclusion requires us to exclude gasoline, even leaded gasoline, from the term “hazardous substance” for purposes of CERCLA. Any other construction ignores the plain language of the statute and renders the petroleum exclusion a nullity. 881 F.2d at 804. The court also noted that the Superfund Amendments and Reauthorization Act of 1986 (SARA), created a separate response program for petroleum leaking from underground storage tanks. Thus, under these authorities, argues GATX, since it only produced petroleum waste that was deposited at Western Processing, it should be dismissed from this case. After dismissing the federal claims, the court will then lack jurisdiction over the pending state claims, and they should be dismissed as well. MOTION OF BOEING Boeing argues that GATX’s motion should be denied because GATX’s wastes were sludge and rinse water containing hazardous substances, and not petroleum; GATX’s wastes are thus not subject to the petroleum exclusion. While the Wilshire Westwood court may have reasoned that gasoline was included in the petroleum exclusion, even though it contained components that are designated hazardous substances under CERCLA, Boeing argues that neither the Ninth Circuit in Wilshire Westwood nor any other court has ever applied the petroleum exclusion to a substance that was not primarily a useable petroleum product such as fuel or oil. In fact, even useable petroleum products that have some market value, such as waste oil, have been found to fall outside of the exclusion. See Washington v. Time Oil Co., 687 F.Supp. 529, 532 (W.D.Wash.1988). Boeing contends that GATX’s wastes were not useable petroleum products and that they contained certain hazardous substances. Ken L. Haworth, the former president of the company that transported GATX’s wastes to Western Processing testified that the sludge and washwater were not useable products. (Haworth dep. at 18, 28.) Boeing points to an EPA interpretation in a Final Rule published April 4, 1985 stating: EPA interprets the petroleum exclusion" }, { "docid": "22596291", "title": "", "text": "the petroleum exclusion’s plain and unambiguous terms compel the construction that it does not apply to petroleum, crude oil or any fraction thereof containing any of the components which have been designated as hazardous pursuant to any one of the acts listed in Section 9601(14)(A)-(F). In our view, however, the application of the standards governing statutory construction to the words of the petroleum exclusion requires us to exclude gasoline, even leaded gasoline, from the term “hazardous substance” for purposes of CERC-LA. Any other construction ignores the plain language of the statute and renders the petroleum exclusion a nullity. Plaintiffs rely upon the canon of statutory construction known as the “doctrine of the last antecedent.” The doctrine of the last antecedent states that qualifying words, phrases and clauses must be applied to the words or phrases immediately preceding them and are not to be construed as extending to and including others more remote. First Charter Financial Corp. v. United States, 669 F.2d 1342, 1350 (9th Cir.1982); United States v. Metate Asbestos Corp., 584 F.Supp. 1143, 1147 (D.Ariz.1984). Plaintiffs contend that in the application of this doctrine “the limiting words ‘which is not otherwise specifically listed’ plainly modify the preceding words of Section 9601(14): ‘[t]he term [hazardous substance] does not include petroleum, including crude oil or any fraction thereof’ and creates an exception.” [emphasis added] We cannot agree with plaintiffs’ application of the doctrine of the last antecedent. As we apply it, the doctrine compels the construction that “hazardous substance” does not include any fraction of crude oil which has been listed or designated as a hazardous substance under Section 9601(14)(A)-(F). The word immediately preceding the qualifying phrase is “fraction.” Plaintiffs’ proposed application ex tends to more remote words and is ungrammatical. Plaintiffs’ application of the doctrine of last antecedent necessarily requires a plural verb in the qualifying phrase while the actual grammar sets forth a singular verb. In further support of their construction of the plain meaning of the petroleum exclusion, plaintiffs point out that lead, benzene, ethyl-benzene and toluene are hazardous substances covered by CERCLA if released as part of" }, { "docid": "20181736", "title": "", "text": "scope of the petroleum exclusion is entirely consistent with its plain meaning and legislative history and constitutes highly persuasive evidence that our interpretation is correct.” 881 F.2d at 808. Most of GATX’s sludge, approximately 67 drums, came from leaded gasoline tanks, 12 from a diesel oil tank, and some amount from an unleaded gasoline tank. (Supp.Ans. of GATX, Exhibit F to the Starrs affidavit.) The sludge was removed, and the tanks were washed to clean out the remainder. (Haworth Dep. at 26.) The sludge contained a rust-like scale of corrosion products from the oxidation of steel in the tank walls. (Haworth dep. 17-19; and other deps., listing omitted.) Because the steel tanks contained chromium, nickel, and other metals, this scale contained oxides of chromium, nickel, and other metals. (Meyer Affidavit at ¶ 12.) Chromium and nickel are listed as hazardous substances under CERCLA. Gasoline typically contains little or no chromium and nickel, and here, gasoline is not the source of the chromium and nickel oxides. Thus, the sludge contained hazardous substances not normally found in refined petroleum fractions. Additionally, argues Boeing, the rust-like scale of corrosion products in GATX’s sludge also contained occluded carbon from the steel tank walls. (Meyer Affidavit at ÍI13.) Because carbon adsorbs, or attaches to, other substances, the scale contained adsorbed compounds of lead and polynu-clear aromatic hydrocarbons (“PAHs”). Id. Lead and PAHs are listed hazardous substances under CERCLA. 40 C.F.R. § 302.4 (Exhibit I to Starrs Affidavit.) The concentrations of PAHs in the sludge exceed the norm for refined petroleum fractions. (Meyer Affidavit at ¶ 13.) The diesel oil sludge contained a higher concentration of PAHs because diesel oil itself contains a heavier concentration of these heavy elements. (Meyer Affidavit at U 17-18.) The unleaded gasoline tanks corrode more slowly, but produce the same oxidation of the metallic components of steel. Boeing argues that GATX’s wastes are similar to wastes specifically listed or designated as hazardous substances. Such petroleum wastes specifically listed by the EPA are leaded tank bottoms from the petroleum refining industry. See 40 C.F.R. § 261.32 (referring to listing K052). Leaded tank" }, { "docid": "22596301", "title": "", "text": "amendments to the Solid Waste Disposal Act authorized a regulatory program to address the problem of leaking underground storage tanks, including petroleum tanks which are not covered by Superfund. Under the amendments included in the conference report, the existing regulatory program is expanded upon to authorize EPA to require the owner of underground petroleum tank to undertake cleanup if the tank should fail or allow EPA to undertake the work if the tank owner can’t or won’t clean up the leak. 132 Cong.Rec. H9572 (daily ed. Oct. 8, 1986). SARA left unchanged the petroleum exclusion set forth in 42 U.S.C. § 9601(14). SARA did amend CERCLA by adding to CERCLA in Section 101(33), 42 U.S.C. § 9601(33), a definition of the term “pollutant or contaminant.” This defini tion contains a petroleum exclusion identical to the exclusion in Section 9601(14). During debate on SARA in the Senate, Senator Simpson stated in pertinent part: This bill will not diminish the scope of the present petroleum exclusion. That provision, found in section 101(14) of the Act excludes from the definition of ‘hazardous substances’ all types of petroleum, including crude oil, crude oil tank bottoms, refined fractions of crude oil, and tank bottoms of such which are not specifically listed or designated as a hazardous substance under the other sub-paragraphs of that provision. 132 Cong.Rec. S14932 (daily ed. Oct. 3, 1986). The rejection of H.R. 1881 in 1985 and the failure to amend the petroleum exclusion when CERCLA was amended by SARA in 1986 even though the EPA had already clarified its interpretation of the exclusion to cover gasoline and other refined products and their components and additives, see discussion infra, are asserted by defendants to constitute persuasive evidence that their interpretation of the petroleum exclusion is the one intended by Congress in 1980. Although defendants’ characterization of these two legislative events as “persuasive evidence” is too strong under the circumstances, these subsequent events are entitled to some weight: Although postenactment developments cannot be accorded ‘the weight of contemporary legislative history, we would be remiss if we ignored these authoritative expressions concerning the scope" }, { "docid": "20181743", "title": "", "text": "Congressional debates on SARA, the EPA, charged with developing and administering CERCLA’s regulatory program, rejected Senator Simpson’s view. EPA regulations specifically list “tank bottoms (leaded) from the petroleum refining process” as hazardous substances falling outside of the exclusion. See 40 C.F.R. § 261.32 (referring to listing K052). These properly promulgated regulations control over the stated views of one legislator. GATX’s effort to characterize Wilshire Westwood as determinative of the issue herein is still unavailing, argues Boeing, as GATX’s sludge is not gasoline or gasoline with additives, but is nonuseable nonpetro-leum waste contaminated with the hazardous constituents of petroleum and by other hazardous substances. Neither CERCLA, EPA regulations, or any court case supports GATX’s claim that contaminated wastes having no marketable value as petroleum products fall within the petroleum exclusion. Concerning GATX’s criticism of Boeing’s cited case law, Boeing agrees that the cases do not involve sludge, but present a closer question because they involved petroleum products, albeit products that had become contaminated. They involved contaminated oil slicks, PCB’s in waste oil, which (as GATX has acknowledged) the congressional debates clearly indicate were intended to fall outside the petroleum exclusion. Here the wastes in question are contaminated wastes, not petroleum products. The CERCLA exclusion does not apply- Boeing argues that GATX has not rebutted Boeing’s evidence that GATX’s sludge contained concentrations of PAHs and lead exceeding those normally found in refined petroleum fractions, nor can it. GATX argues that any reading of the petroleum exclusion that does not include petroleum sludge simply because of increased levels of PAHs from the rust in the storage tanks would render the petroleum exclusion a nullity. But this reading has been adopted by the EPA and upheld by the Courts: We believe that an interpretation of “petroleum” to include only indigenous, refinery-added hazardous substances is the interpretation of this provision which is most consistent with Congressional intent. The language of the provision, its explanation in the legislative history, and the Congressional debates on the final Superfund bill clearly indicate that Congress had no intention of shielding from Superfund response and liability hazardous substances merely because" }, { "docid": "20181739", "title": "", "text": "response and liability hazardous substances merely because they are added, intentionally or by use, to petroleum products.” (EPA memo at 6.) The primary purpose of the exclusion was to remove “spills or other releases strictly of oil” from CERCLA’s scope. Exxon Corp., 744 F.Supp. at 490, 31 Env’t Rep.Cas. at 1976 (quoting S.Rep. No. 96-848, 96th Cong., 2d Sess. 29-30 (1980)). The Exxon Court concluded: Clearly, though Congress intended to exclude oil spills from the coverage of CERCLA, Congress did not intend to exclude waste oils such as Alcan’s which are by no means strictly “crude oil or any fraction thereof.” Id. Here, argues Boeing, the waste sludge and washwater is even further removed from the petroleum exclusion than waste oil, which is at least arguably a useable petroleum product. GATX’s wastes are not strictly “crude oil or any fraction thereof.” GATX is a liable party who acknowledged that its wastes were taken to Western Processing by a transporter. REPLIES GATX Reply While most of the facts are not in dispute, states GATX, Boeing’s expert, Dr. Eugene Meyer has alleged without evidence that GATX’s sludge contained chromium and nickel from the rust in the storage tanks. GATX contends that its tanks were made of carbon steel that contains no chromium or nickel. (Deposition of Donald E. Miller at 22, line 11; affidavit of Richard E. Poulson at If 5.) GATX argues that petroleum sludge and petroleum wash water are fractions of petroleum. GATX contends that sludge is the fraction of petroleum which settles to the bottom of the tank in which petroleum is stored, and petroleum wash water is sludge greatly diluted by water. Under the statute’s plain meaning as discussed in Wilshire Westwood, even though gasoline contains lead, it is still excluded from CERCLA coverage. Likewise, petroleum sludge must be excluded, because petroleum is always stored in steel tanks, and both petroleum and petroleum sludge always pick up rust and other constituents from the steel tanks in which they are stored. (Poulson Affidavit at II6.) Otherwise, the petroleum exclusion would be rendered a nullity. GATX distinguishes Boeing cases as" }, { "docid": "20181738", "title": "", "text": "bottoms are the wastes generated from cleaning out leaded gasoline tanks. API Survey at 4-4. Although the listing refers only to tank bottoms from petroleum refining, the tank bottoms from petroleum storage present the same toxicity concerns that prompted the EPA to list this waste. The EPA’s Listing Background Document for petroleum refining wastes, justifies the listing of leaded tank bottoms because “[s]olids formed as products of corrosion and rust in the tanks contain toxic metals, and are periodically removed. This waste is being listed because it contains lead.” Id. at 690. (Exhibit K to Starrs Affidavit.) This statement referring to refining tank bottoms, matches the description of GATX’s storage tank bottoms. (Meyer Affidavit at 11119-14.) There is no indication that EPA wished to distinguish between refining and storage tank bottoms, and there is no technical reason to distinguish between the two and consider storage tank bottoms as falling within the petroleum exclusion. Boeing addresses legislative history referring to the EPA Memorandum earlier mentioned, which states: ... “Congress had no intention of shielding from Superfund response and liability hazardous substances merely because they are added, intentionally or by use, to petroleum products.” (EPA memo at 6.) The primary purpose of the exclusion was to remove “spills or other releases strictly of oil” from CERCLA’s scope. Exxon Corp., 744 F.Supp. at 490, 31 Env’t Rep.Cas. at 1976 (quoting S.Rep. No. 96-848, 96th Cong., 2d Sess. 29-30 (1980)). The Exxon Court concluded: Clearly, though Congress intended to exclude oil spills from the coverage of CERCLA, Congress did not intend to exclude waste oils such as Alcan’s which are by no means strictly “crude oil or any fraction thereof.” Id. Here, argues Boeing, the waste sludge and washwater is even further removed from the petroleum exclusion than waste oil, which is at least arguably a useable petroleum product. GATX’s wastes are not strictly “crude oil or any fraction thereof.” GATX is a liable party who acknowledged that its wastes were taken to Western Processing by a transporter. REPLIES GATX Reply While most of the facts are not in dispute, states GATX, Boeing’s expert," }, { "docid": "18029988", "title": "", "text": "the court was interpreting remedial language that was ambiguous. We find no ambiguity in the private-suit provision. Thus, in addition to the\" statute of limitations, the plaintiffs Tank Act claim lacks merit because the Tank Act does not apply to conduct occurring before its enactment. B. Two Rivers’ CERCLA and PaHS-CA Claims. CUSA moves for summary.judgment on Two Rivers’ CERCLA . and PaHSCA claims on the ground that there is, no evidence of a release or a threatened release of a “hazardous substance,” as defined in both Acts, citing ABB Industrial Systems, Inc. v. Prime Technology, Inc., 120 F.3d 351, 356 (2d Cir.1997); and Darbouze v.. Chevron Corp., 1998 WL 512941 (E.D.Pa.). CERCLA covers a number of hazardous substances, as defined in 42 U.S.C. § 9601(14). The definition, however, expressly excludes “petroleum, including crude oil or any fraction thereof ...” Id. PaHSCA “is Pennsylvania’s version of CERCLA and was in fact modeled after the federal statute.” Darbouze, supra, 1998 WL 512941 at *9 (citing General Electric Environmental Services, Inc. v. Envirotech Corp., 763 F.Supp. 113, 115 n. 1 (M.D.Pa.1991)). PaHSCA also excludes from its definition of “hazardous substance” “petroleum or petroleum products, including crude oil or any fraction thereof ...” 35 P.S. § 6020.103. And courts wih often follow CERCLA in interpreting PaHSCA. Darbouze, supra; General Electric, supra. The petroleum exclusion includes fuel oil and leaded gasoline, Wilshire Westwood Associates v. Atlantic Richfield Corp., 881 F.2d 801, 803, 810 (9th Cir.1989); Andritz Sprout-Bauer, Inc. v. Beazer East Inc., 12 F.Supp.2d 391, 410 (M.D.Pa.1998) (gasoline), and any indigenous components in refined or unrefined gasobne or any such components added in the refining process even if the components would by themselves be considered hazardous substances. United States v. Alcan Aluminum Corp., 964 F.2d 252, 266-67 (3d Cir.1992); Wilshire, 881 F.2d at 810. In support of its motion, CUSA argues that the only evidence of a release or threat of release was of petroleum products and that the only “hazardous substances” that have been discovered at the terminal are the natural constituents of the petroleum products that were stored there. CUSA thus argues" }, { "docid": "4402681", "title": "", "text": "asks the Court to reconsider its conclusion, 744 F.Supp. at 489-90, that Al-can’s waste oil emulsion is not subject to CERCLA’s “petroleum exclusion”. Alcan argues that its waste oil contains concentrations of lead, chromium, and cadmium far below those found in “virgin oil”. Therefore, Alcan contends, its waste oil falls within the exclusion. We have reconsidered our earlier determination that Al-can’s waste is not subject to the petroleum exclusion, and, upon reconsideration, we adhere to our prior conclusion. The petroleum exclusion is part of CERCLA’s definition of hazardous substance: “[t]he term [hazardous substance] does not include petroleum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance under (A) through (F) of this paragraph.” 42 U.S.C. § 9601(14). By its plain language, this exclusion for petroleum does not include waste oil. A standard chemical dictionary defines petroleum fractions as usable petroleum products which are derived by ‘cracking’ or distilling crude oil. See Hawley’s Condensed Chemical Dictionary 540, 892 (11th ed. 1987) (quoted in United States v. Western Processing Co., 761 F.Supp. 713, 719 (W.D.Wash.1991)). Hawley’s also states that the most important petroleum fractions, obtained by cracking, include various hydrocarbon gases, naph tha, gasoline, kerosene, fuel oils, gas oil, lubricating oils, paraffin wax, and asphalt. Id. at 892 (quoted in Western Processing, 761 F.Supp. at 719). Although waste oils such as Alcan’s — petroleum fractions to which contaminants have been added during use — are to an extent “[re]usable petroleum products”, they are not strictly “petroleum, including crude oil or any fraction thereof”. Indeed, the EPA has stated that only imadulterated waste oils are excluded from the definition of hazardous substance under Section 101(14). 50 Fed.Reg. 13460 (April 4, 1985). The EPA has published its interpretation of the petroleum exclusion in the Federal Register and summarized it in an internal memorandum, dated July 31,1987 and written by the EPA General Counsel, entitled, “Scope of the CERCLA Petroleum Exclusion” (“EPA Memo”). According to the notice in the Federal Register, EPA interprets the petroleum exclusion to apply to materials such as crude oil, petroleum" }, { "docid": "20181733", "title": "", "text": "are thus not subject to the petroleum exclusion. While the Wilshire Westwood court may have reasoned that gasoline was included in the petroleum exclusion, even though it contained components that are designated hazardous substances under CERCLA, Boeing argues that neither the Ninth Circuit in Wilshire Westwood nor any other court has ever applied the petroleum exclusion to a substance that was not primarily a useable petroleum product such as fuel or oil. In fact, even useable petroleum products that have some market value, such as waste oil, have been found to fall outside of the exclusion. See Washington v. Time Oil Co., 687 F.Supp. 529, 532 (W.D.Wash.1988). Boeing contends that GATX’s wastes were not useable petroleum products and that they contained certain hazardous substances. Ken L. Haworth, the former president of the company that transported GATX’s wastes to Western Processing testified that the sludge and washwater were not useable products. (Haworth dep. at 18, 28.) Boeing points to an EPA interpretation in a Final Rule published April 4, 1985 stating: EPA interprets the petroleum exclusion to apply to materials such as crude oil, petroleum feedstocks, and refined petroleum products, even if a specifically listed or designated hazardous substance is present in such products. However, EPA does not consider materials such as waste oil to which listed CERCLA sub stances have been added to be within the petroleum exclusion. 50 Fed.Reg. 13,460, attached as Exhibit B to Starrs affidavit. Boeing cites two cases where courts have found the petroleum exclusion inapplicable to oil-related wastes containing hazardous substances: New York City v. Exxon Corp., 744 F.Supp. 474, 31 Env’t Rep.Cas. (BNA) 1963 (S.D.N.Y.1990) (oil/water emulsion that averaged roughly 5% oil and contained lead, cadmium, and chromium. Id., at 477, 489-90, 31 Env’t Rep.Cas. (BNA) at 1964, 1976); City of Philadelphia v. Stepan Chemical Co., 17 Chem. Waste Lit.Rep. 667, 1988 WL 136530 (E.D.Pa.1988) (residue from a process involving the refining of fuel oil to produce synthetic gas; Court concluded there was a genuine issue of material fact concerning the presence of hazardous substances in part because the generator’s waste may have been" }, { "docid": "22596311", "title": "", "text": "alike require that the standards of public enforcement and those for determining private rights shall be at variance only when justified by very good reasons.”) We conclude that the EPA’s interpretation of the scope of the petroleum exclusion should be accorded considerable deference, especially because of the virtual absence of contemporaneous legislative history. While the EPA’s opinions are not exactly contemporaneous with the enactment of the petroleum exclusion, its consideration has been very thorough and consistent over time. E. Conclusion. We rule that the petroleum exclusion in CERCLA does apply to unrefined and refined gasoline even though certain of its indigenous components and certain additives during the refining process have themselves been designated as hazardous substances within the meaning of CERC-LA. AFFIRMED. . 42 U.S.C. § 9607(a)(2)(B) provides in pertinent part: Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section— (2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of (4) ... shall be liable for— (B) any other necessary costs of response incurred by any other person consistent with the national contingency plan.... . 42 U.S.C. § 9601(14) defines the term \"hazardous substance” as: (14) The term 'hazardous substance' means (A) any substance designated pursuant to section 1321(b)(2)(A) of Title 33, (B) any element, compound, mixture, solution, or substance designated pursuant to section 9602 of this title, (C) any hazardous waste having the characteristics identified under or listed pursuant to section 3001 of the Solid Waste Disposal Act [42 U.S.C.A. § 6921] (but not including any waste the regulation of which under the Solid Waste Disposal Act [42 U.S.C.A. § 6901 et seq.] has been suspended by Act of Congress), (D) any toxic pollutant listed under section 112 of the Clean Air Act [42 U.S.C.A. § 7412], and (F) any imminently hazardous chemical substance or mixture with respect to which the Administrator has taken action pursuant to section 2606 of Title 15. The term does not include petroleum, including crude" } ]

[ { "docid": "22161903", "title": "", "text": "served as secretary. Belin also wrote three books that were circulated, in part, in Texas. Finally, he wrote an article for the Washington Post that was reprinted in a Texas newspaper. Our examination of Blakey’s and Belin’s activities in Texas, in toto, leads us to the conclusion that their unrelated contacts with Texas were not as “continuous and systematic” and, in any event, were not as “substantial” as the nonresident defendant’s contacts in Perkins. We simply cannot say that because of these various brief contacts with Texas that either of these defendants should have reasonably expected to be sued in Texas on any matter, however remote from these contacts. They simply were not substantial enough to give rise to such an expectation. Neither Blakey nor Belin conducted regular business in Texas. They never made all or even a substantial part of their business decisions in Texas, did not keep bank accounts in Texas, did not hold directors’ meetings in Texas, and did not maintain their files in Texas. Cf. Perkins, 342 U.S. at 448, 72 S.Ct. at 419. Even if Blakey’s contacts with Texas via his short-lived malpractice insurance arrangement through a Texas law firm and his multi-year pro bono association with the historical society were arguably continuous, we hold that they were not substantial enough to warrant the imposition of general personal jurisdiction over Blakey. See Keeton, 465 U.S. at 779 & n. 11, 104 S.Ct. at 1481 & n. 11. With respect to Belin, his contacts are sporadic and attenuated instead of continuous, and they are definitely not substantial. Consequently, we hold that the assertion of general personal jurisdiction over Blakey and Belin would deprive them of their respective due process liberty interests not to be subjected to suit in a distant forum with which they have little connection. V For the foregoing reasons, the order of the district court is AFFIRMED. . The Texas long-arm statute authorizes the exercise of jurisdiction over nonresidents “doing business,” which includes committing a tort in whole or in part, in Texas. Tex.Civ.Prac. & Rem.Code Ann. § 17.02 (Vernon 1986). The Texas" } ]

[ { "docid": "22264199", "title": "", "text": "malpractice insurance through a Texas law firm for one year, did three legal projects in Texas in three years, gave a seminar in Texas, served as a pro bono consultant to a Dallas historical society, wrote a letter-to-the-editor which appeared in a Texas newspaper and a book which was circulated in Texas, and gave interviews to Texas reporters), cert. denied, - U.S. -, 115 S.Ct. 322, 130 L.Ed.2d 282 (1994); Core-Vent Corp. v. Nobel Indus. AB, 11 F.3d 1482, 1490 (9th Cir.1993) (holding that Swedish resident could not be subjected to general jurisdiction in California based on attending five conferences there in four years). Here, some of Watt’s contacts are highly attenuated: owning a joint bank account with his mother, belonging to the Tenth Circuit bar, having lived in Colorado years ago, and having owned property in Colorado. Beyond this, it appears Watt often visits Colorado but does a relatively small amount of business in the state. These contacts do not rise to the “continuous and systematic” level necessary to confer general jurisdiction. B The final question concerning defendant Watt is whether the claims against him should have been dismissed or transferred. Trierweiler states that he has filed a new action in the United States District Court for the District of Wyoming, where Watt has moved for summary judgment based on the statute of limitations. That action has been stayed pending resolution of this appeal. Trierweiler claims that he would have no statute of limitations problem if the present litigation were transferred to the District of Wyoming rather than dismissed, and that in the interest of justice the Colorado district court should have transferred the case. See 28 U.S.C. § 1404(a) (“For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought”) (emphasis added); see also Burnett v. New York Central R.R. Co., 380 U.S. 424, 430 n. 7, 85 S.Ct. 1050, 1055 n. 7, 13 L.Ed.2d 941 (1965) (transfer may be required “when dismissal of an action for" }, { "docid": "11681281", "title": "", "text": "consultant to a Dallas historical society), cited with approval in Trierweiler, 90 F.3d at 1544; First Trust Nat’l Ass’n v. Jones, Walker, Waechter, Poitevent, Carrere & Denegre, 996 F.Supp. 585 (S.D.Miss.1998) (Louisiana law firm, a nonresident defendant in legal malpractice action, was not subject to general jurisdiction of Mississippi court where only contacts with Mississippi included occasional representation of Mississippi clients and some members of firm were licensed to practice law in Mississippi); see also Crea v. Busby, 48 Cal.App.4th 509, 515-16, 55 Cal.Rptr.2d 513 (1996) (California did not have general jurisdiction over nonresident defendant in legal malpractice action where defendant’s contacts with California included only maintenance of California law license). In summary, the court concludes that its exercise of personal jurisdiction over defendant with respect to plaintiff Eichen-wald’s case would violate the requirements of due process. Accordingly, the court denies defendant’s motion to dismiss plaintiffs first amended complaint, but transfers plaintiffs case to the United States District Court for the Western District of Missouri pursuant to 28 U.S.C. § 1631. IT IS THEREFORE ORDERED BY THE COURT THAT defendant’s motion to dismiss plaintiff Worthington’s first amended complaint (doc. #25) is denied; defendant’s motion to dismiss plaintiff Ei-chenwald’s first amended complaint (doc. # 18) is denied; defendant’s motion to dismiss plaintiff Worthington’s complaint (doc. # 14) is denied as moot; defendant’s motion to dismiss plaintiff Eichenwald’s complaint (doc. # 6) is denied as moot; but plaintiffs’ cases are transferred, along with their pending motions for costs, to the United States District Court for the Western District of Missouri pursuant to 28 U.S.C. § 1681. IT IS SO ORDERED. . Section 1631 states, in relevant part, as follows: Whenever a civil action is filed in a court ... or an appeal ... is noticed for or filed with such a court and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed," }, { "docid": "13628041", "title": "", "text": "Once an analysis of the forum state’s law has been completed, the Court considers whether the exercise of jurisdiction over the defendant comports with due process. The general constitutional test for personal jurisdiction is well-established. A federal court sitting in diversity “may exercise personal jurisdiction over a nonresident defendant only so long as there exist ‘minimum contacts’ between the defendant and the forum state.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). The defendant’s contacts with the forum state must also be such that maintenance of the suit “does not offend traditional notions of fair play and substantial justice.” International Shoe, 326 U.S. at 316. A defendant’s contacts are sufficient if the defendant “purposefully avails itself of the privilege of conducting activities within the forum State.” Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). In its consideration of this standard, the Court’s analysis depends upon whether the plaintiff seeks the exercise of personal jurisdiction in a suit unrelated to the defendant’s contacts with the forum state or in a suit arising out of or related to the defendant’s contacts with the forum. “General jurisdiction” is personal jurisdiction based on a defendant’s contacts with the forum that are unrelated to the controversy. Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). To exercise general jurisdiction the Court must determine whether “the contacts are sufficiently systematic and continuous as to support a reasonable exercise of jurisdiction.” Stuart v. Spademan, 772 F.2d 1185, 1191 (5th Cir.1985) (citing Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984)). Jones, Walker is a law firm based in New Orleans, Louisiana. Affidavit testimony provided by Charles W. Lane, III, a senior partner in Jones, Walker, states that Jones, Walker has never had any offices in Mississippi, has never owned personal property in Mississippi, is not qualified to do business in Mississippi, has no agent" }, { "docid": "11681279", "title": "", "text": "has had with Kansas that are unrelated to plaintiffs cause of action. As discussed above, a nonresident defendant may be subject to a state’s jurisdiction even when the alleged injury is not related to the defendant’s contacts with the forum state as long as the unrelated contacts are continuous and systematic enough “that the defendant could reasonably anticipate being haled into court in that forum.” Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d 1528, 1543 (10th Cir.1996) (citations omitted). With respect to defendant’s unrelated contacts with Kansas, the record dem- . onstrates only that defendant is a member of the Kansas bar, has represented clients in Kansas courts over the past several years, and has appeared as a defendant in several cases in Kansas courts. These contacts do not rise to the “continuous and systematic” level necessary to confer general jurisdiction. Specifically, plaintiff alleges that defendant, ás an attorney licensed to practice law in Kansas, has represented clients in seven cases filed in the United States District Court for the District of Kansas since 1990. Significantly, however, only two of those cases were filed after 1992. Plaintiff also alleges that defendant has appeared as a defendant in eight cases in Kansas state court. All of those cases were filed in 1990 or 1991. In short, other than maintaining his Kansas law license, defendant has had very few contacts with Kansas in recent years. These limited contacts are not sufficiently “continuous and systematic” to enable this court to exercise general jurisdiction over defendant. See Trierweiler, 90 F.3d at 1543-44 (Colorado did not have general jurisdiction over nonresident defendant where contacts with Colorado included admission to practice law in the Tenth Circuit, owning property in Colorado, maintaining joint bank account in Colorado and traveling to state several times a year); Wilson v. Belin, 20 F.3d 644, 650-51 (5th Cir.1994) (Texas did not have general jurisdiction over nonresident defendant where contacts with Texas included carrying malpractice insurance through a Texas law firm, doing three legal projects in Texas in three years, giving legal seminar in Texas and serving as a pro bono" }, { "docid": "13628042", "title": "", "text": "whether the plaintiff seeks the exercise of personal jurisdiction in a suit unrelated to the defendant’s contacts with the forum state or in a suit arising out of or related to the defendant’s contacts with the forum. “General jurisdiction” is personal jurisdiction based on a defendant’s contacts with the forum that are unrelated to the controversy. Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). To exercise general jurisdiction the Court must determine whether “the contacts are sufficiently systematic and continuous as to support a reasonable exercise of jurisdiction.” Stuart v. Spademan, 772 F.2d 1185, 1191 (5th Cir.1985) (citing Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984)). Jones, Walker is a law firm based in New Orleans, Louisiana. Affidavit testimony provided by Charles W. Lane, III, a senior partner in Jones, Walker, states that Jones, Walker has never had any offices in Mississippi, has never owned personal property in Mississippi, is not qualified to do business in Mississippi, has no agent for service of process in Mississippi, and has never advertised or otherwise solicited business in Mississippi. While Jones, Walker does occasionally represent Mississippi residents, and some members of the firm are licensed to practice law here, this does not constitute “systematic and continuous” contacts, sufficient to establish general jurisdiction. Helicopteros, 466 U.S. at 416; see also Myers v. Emery, 697 S.W.2d 26,31 (Tex.Ct.App.1985). Therefore, the Court is unable to exercise general jurisdiction in this action. “Specific jurisdiction,” however, is personal jurisdiction based on contacts with the forum state that are related to the particular controversy. Helicopteros, 466 U.S. at 414. Even a single purposeful contact may in a proper case be sufficient to meet the requirement of minimum contacts when the cause of action arises from the contact. Micromedia v. Automated Broadcast Controls, 799 F.2d 230, 234 (5th Cir. 1986). To exercise specific jurisdiction, the Court must examine the relationship among the defendants, the forum, and the litigation to determine whether maintaining the suit offends traditional notions of fair play and substantial justice. Shaffer v." }, { "docid": "13628033", "title": "", "text": "MEMORANDUM OPINION BRAMLETTE, District Judge. This matter is before the Court on defendant’s Motion to Dismiss for Lack of. Personal Jurisdiction, or In the Alternative for Improper Venue (docket entry # 9), pursuant to Rules 12b(2) and (3) of the Federal Rules of Civil Procedure. After reviewing the motions, briefs, applicable statutory and case law, and being otherwise fully advised in the premises, the Court finds as follows: I. FACTUAL HISTORY This is a legal malpractice action, filed by First Trust National Association (“FTNA”) against the law firm of Jones, Walker, Waechter, Poitevent, Carrere & Denegre (“Jones, Walker”). The claim is based on an opinion letter authored by William H. Hines, a partner in Jones, Walker and also a named defendant. The plaintiff, FTNA, is a national banking association organized under the laws of the United States with its offices and principal place of business in St. Paul, Minnesota. FTNA filed the present law suit in its capacity as indenture trustee for the holders (“Noteholders”) of 12% first mortgage notes of Belle Casinos, Incorporated. The defendant, Jones, Walker, is a limited liability partnership of attorneys specializing, in part, in the area of admiralty and maritime law. Jones, Walker maintains its principal place of business in New Orleans, Louisiana. William Hines is also a resident of Louisiana. This case arises from a $75,000,000 bond issue to finance the construction of two dockside casinos in Mississippi, one in Tunica County and one in Biloxi. The primary collateral securing the repayment of the $75,-000,000 were the casinos themselves. On October 12, 1993, BCBI executed a First Preferred Fleet Mortgage to ensure that the bondholders had a valid, first priority lien upon the Tunica Casino. Jones, Walker issued an opinion letter regarding the Fleet Mortgage. Jones, Walker’s opinion letter stated that the Fleet Mortgage “constitutes a legal, valid and binding obligation ... enforceable ... according to its terms,” which is “superior to all other liens.” The bonds were issued and sold to numerous investors who believed that their investment was secured, at least in part, by a valid, first priority Fleet Mortgage upon the" }, { "docid": "11681272", "title": "", "text": "60-308(b)(2) for purposes of plaintiff Eichenwald’s case. See Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253, 257 (11th Cir.1996) (affirming exercise of personal jurisdiction over nonresident attorneys in legal malpractice action pursuant to “tortious act” prong of Florida’s long-arm statute where attorneys’ alleged negligence caused damage to estate in Florida); Wilson v. Olathe Bank, Civ.A. No. 97-2458-KHV, 1998 WL 184470, at *3 (D.Kan. Mar.2, 1998) (exercising jurisdiction pursuant to § 308(b)(2) over nonresident attorney hired to perform services outside the state of Kansas where plaintiffs alleged that nonresident attorney committed tor-tious acts causing economic injury in Kansas). Unlike plaintiff Eichenwald, plaintiff Worthington was a Missouri resident at the time she entered into the contract with defendant. Although she is now a Kansas resident, the record does not indicate when she became a Kansas resident and, more specifically, whether she was a Kansas resident at the time she allegedly sustained economic injuries as a result of defendant’s conduct. Thus, the court cannot ascertain whether plaintiff sustained her injuries in Kansas as required by subsection (b)(2) of the long-arm statute. See First Trust Nat’l Ass’n v. Jones, Walker, Waechter, Poitevent, Carrere & Denegre, 996 F.Supp. 585, 588-89 (S.D.Miss.1998) (granting defendant’s motion to dismiss for lack of personal jurisdiction in legal malpractice action where plaintiffs failed to submit evidence that injury — for purposes of “tor-tious act” prong of Mississippi’s long-arm statute — occurred in Mississippi). Accordingly, the court denies defendant’s motion to dismiss plaintiff Worthington’s first amended complaint, but transfers plaintiff Worthington’s case to the United States District Court for the Western District of Missouri pursuant to 28 U.S.C. § 1631. B. Due Process Despite its finding that defendant’s alleged conduct falls within the “tor-tious act” provision of the long-arm statute with respect to plaintiff Eichenwald’s complaint, the court nonetheless concludes that the exercise of long-arm jurisdiction over defendant would violate due process. The touchstone of this constitutional inquiry is whether the nonresident party purposefully established “minimum contacts” with the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); Federated Rural Elec." }, { "docid": "22264197", "title": "", "text": "Watt was in Wyoming. This conduct falls short of the “purposeful availment” required for Colorado to assert specific jurisdiction. See Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239-40, 2 L.Ed.2d 1283 (1958). Colorado did not have general jurisdiction over Watt, either. Trierweiler claims Watt’s “continuous and systematic activities” in Colorado sufficed to establish general jurisdiction. Specifically, Trierweiler alleges that Watt: (1) lived in Colorado from 1977-1981 (well before the events at issue here) and was then associated with a local legal foundation; (2) is admitted to practice law in the Tenth Circuit; (3) owned some property in Colorado; (4) has a joint bank account in Colorado; (5) travels here several times a year; (6) was a limited partner in a Colorado limited partnership until 1990; and (7) was a member of the proposed advisory board of Aesir, in which capacity he consulted the officers of C&T and received reimbursement for some travel expenses. Under general jurisdiction, a nonresident defendant may be subject to a state’s jurisdiction even when the alleged injury is not related to the defendant’s contacts with the forum state, Doe, 974 F.2d at 146, as long as the unrelated contacts are continuous and systematic enough “that the defendant could reasonably anticipate being haled into court in that forum,” id. The Supreme Court has established this as being a high threshold. See Helicopteros, 466 U.S. at 415-17, 104 S.Ct. at 1872-74 (a foreign corporation negotiated a contract in Texas, forwarded checks out of a Texas bank, bought goods and services from a Texas manufacturer, and sent personnel to Texas for training; still, the corporation’s contacts were insufficient to al low Texas to assert jurisdiction); see also Doe, 974 F.2d at 146 (nonresident corporate defendant’s contacts with Colorado insufficient to support assertion of general jurisdiction where corporation solicited no business in Colorado but was regularly sent urine samples for testing from Colorado clients). Courts have been equally demanding where defendants were individuals rather than corporations. See Wilson v. Belin, 20 F.3d 644, 650-51 (5th Cir.) (denying that Texas could assert general jurisdiction over defendant who carried" }, { "docid": "22222188", "title": "", "text": "with New Hampshire were limited, consisting primarily of written and telephone communications with the clients in the state where they happened to live. Compare Sher v. Johnson, 911 F.2d 1357, 1362-63 (9th Cir.1990) (contacts between client and non-resident law firm consisting of telephone calls, mailings, and three visits by lawyer to forum state to visit client were not, by themselves, sufficient connections with forum to establish purposeful availment) with Trinity Industries, Inc. v. Myers & Associates, Ltd., 41 F.3d 229, 230-31 (5th Cir.1995) (jurisdiction over an Illinois law firm sued by a Texas client for malpractice was upheld because the firm had purposefully availed itself of privileges of doing business in Texas by extended representation of the client in at least 40 matters, including a court appearance in the forum). The mere existence of an attorney-client relationship, unaccompanied by other sufficient contacts with the forum, does not confer personal jurisdiction over the nonresident in the forum state; more is required. See Burger King, 471 U.S. at 479-80, 105 S.Ct. at 2186; Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239-40, 2 L.Ed.2d 1283 (1958); Trinity Industries, 41 F.3d at 230 & n. 6; Cote, 796 F.2d at 984 (“[personal jurisdiction over nonresidents ... is a quid for a quo that consists of the state’s extending protection or other services to the nonresident”). In this case, the defendant-attorneys’ only connection with New Hampshire was the Sawtelles’ residence there. See Trinity Industries, 41 F.3d at 231 n. 8. The case on which the plaintiffs rely as “most like” the instant action is Waterval v. District Court, 620 P.2d 5 (Colo.1980), cert. denied, 452 U.S. 960, 101 S.Ct. 3108, 69 L.Ed.2d 971 (1981), in which the Colorado courts exercised jurisdiction over a Virginia attorney who had rendered negligent financial sendees to a Colorado resident. In Wat-erval, the attorney-client relationship arose when both parties were residents of Virginia and the attorney established and oversaw for the client the administration of a discretionary investment account in a Virginia bank. Id. at 7. After the client moved to Colorado, the attorney-client relationship continued when" }, { "docid": "11681273", "title": "", "text": "of the long-arm statute. See First Trust Nat’l Ass’n v. Jones, Walker, Waechter, Poitevent, Carrere & Denegre, 996 F.Supp. 585, 588-89 (S.D.Miss.1998) (granting defendant’s motion to dismiss for lack of personal jurisdiction in legal malpractice action where plaintiffs failed to submit evidence that injury — for purposes of “tor-tious act” prong of Mississippi’s long-arm statute — occurred in Mississippi). Accordingly, the court denies defendant’s motion to dismiss plaintiff Worthington’s first amended complaint, but transfers plaintiff Worthington’s case to the United States District Court for the Western District of Missouri pursuant to 28 U.S.C. § 1631. B. Due Process Despite its finding that defendant’s alleged conduct falls within the “tor-tious act” provision of the long-arm statute with respect to plaintiff Eichenwald’s complaint, the court nonetheless concludes that the exercise of long-arm jurisdiction over defendant would violate due process. The touchstone of this constitutional inquiry is whether the nonresident party purposefully established “minimum contacts” with the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); Federated Rural Elec. Ins. Corp. v. Kootenai Elec. Coop., 17 F.3d 1302, 1305 (10th Cir.1994). This standard may be met in two ways. First, a court may exercise specific jurisdiction if a defendant- has “purposefully directed” his activities toward the forum jurisdiction and the litigation results from alleged injuries that arise out of or relate to those activities. Kuenzle v. HTM Sport-Und Freizeitgerate AG, 102 F.3d 453, 456 (10th Cir.1996) (quoting In re Application to Enforce Administrative Subpoenas Duces Tecum of S.E.C. v. Knowles, 87 F.3d 413, 418 (10th Cir.1996) (quoting Burger King, 471 U.S. at 472, 105 S.Ct. 2174)). Second, a court may exercise general jurisdiction if the defendant’s contacts with the forum' state, while unrelated to the alleged activities upon which the claims are based, are nonetheless “continuous and systematic.” Knowles, 87 F.3d at 418. Because plaintiff Eichenwald has not specified which standard she believes is applicable here, the court will focus on both specific and general jurisdiction. As sét forth below, the court concludes that it has neither specific nor general jurisdiction over defendant. Accordingly," }, { "docid": "11681278", "title": "", "text": "falls short of the “purposeful availment” required for this court to assert specific jurisdiction. See Trinity Indus., Inc. v. Myers & Assocs., Ltd., 41 F.3d 229, 230 (5th Cir.1995) (“The bare existence of an attorney-client relationship is not' sufficient” to confer personal jurisdiction over nonresident attorney.); First Trust Nat’l Ass’n v. Jones, Walker, Waechter, Poitevent, Carrere & Denegre, 996 F.Supp. 585, 590 (S.D.Miss.1998) (Mississippi did not have specific jurisdiction over nonresident law firm in legal malpractice action where law firm’s only contact with Mississippi arising out plaintiffs cause of action was attorney-client relationship with plaintiff, a Mississippi resident); Biederman v. Schnader, Harrison, Siegal & Lewis, 765 F.Supp. 1057, 1059-61 (D.Kan.1991) (nonresident law firm’s entering into contract for legal services with Kansas resident not sufficient to subject law firm to personal jurisdiction in Kansas where dispute arose out of law firm’s representation of Kansas resident in litigation taking place in other forums). 2. General Jurisdiction The court, then, turns to address whether the assertion of general jurisdiction over defendant is warranted because of any contacts defendant has had with Kansas that are unrelated to plaintiffs cause of action. As discussed above, a nonresident defendant may be subject to a state’s jurisdiction even when the alleged injury is not related to the defendant’s contacts with the forum state as long as the unrelated contacts are continuous and systematic enough “that the defendant could reasonably anticipate being haled into court in that forum.” Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d 1528, 1543 (10th Cir.1996) (citations omitted). With respect to defendant’s unrelated contacts with Kansas, the record dem- . onstrates only that defendant is a member of the Kansas bar, has represented clients in Kansas courts over the past several years, and has appeared as a defendant in several cases in Kansas courts. These contacts do not rise to the “continuous and systematic” level necessary to confer general jurisdiction. Specifically, plaintiff alleges that defendant, ás an attorney licensed to practice law in Kansas, has represented clients in seven cases filed in the United States District Court for the District of Kansas since" }, { "docid": "22264198", "title": "", "text": "not related to the defendant’s contacts with the forum state, Doe, 974 F.2d at 146, as long as the unrelated contacts are continuous and systematic enough “that the defendant could reasonably anticipate being haled into court in that forum,” id. The Supreme Court has established this as being a high threshold. See Helicopteros, 466 U.S. at 415-17, 104 S.Ct. at 1872-74 (a foreign corporation negotiated a contract in Texas, forwarded checks out of a Texas bank, bought goods and services from a Texas manufacturer, and sent personnel to Texas for training; still, the corporation’s contacts were insufficient to al low Texas to assert jurisdiction); see also Doe, 974 F.2d at 146 (nonresident corporate defendant’s contacts with Colorado insufficient to support assertion of general jurisdiction where corporation solicited no business in Colorado but was regularly sent urine samples for testing from Colorado clients). Courts have been equally demanding where defendants were individuals rather than corporations. See Wilson v. Belin, 20 F.3d 644, 650-51 (5th Cir.) (denying that Texas could assert general jurisdiction over defendant who carried malpractice insurance through a Texas law firm for one year, did three legal projects in Texas in three years, gave a seminar in Texas, served as a pro bono consultant to a Dallas historical society, wrote a letter-to-the-editor which appeared in a Texas newspaper and a book which was circulated in Texas, and gave interviews to Texas reporters), cert. denied, - U.S. -, 115 S.Ct. 322, 130 L.Ed.2d 282 (1994); Core-Vent Corp. v. Nobel Indus. AB, 11 F.3d 1482, 1490 (9th Cir.1993) (holding that Swedish resident could not be subjected to general jurisdiction in California based on attending five conferences there in four years). Here, some of Watt’s contacts are highly attenuated: owning a joint bank account with his mother, belonging to the Tenth Circuit bar, having lived in Colorado years ago, and having owned property in Colorado. Beyond this, it appears Watt often visits Colorado but does a relatively small amount of business in the state. These contacts do not rise to the “continuous and systematic” level necessary to confer general jurisdiction. B The" }, { "docid": "10860730", "title": "", "text": "cause of action.” Environmental Ventures, Inc., 19 Kan.App.2d at 296, 868 P.2d 540. The Tenth Circuit has endorsed a three-part test to determine whether nonresident defendants’ contacts with the forum state are strong enough to justify the exercise of personal jurisdiction. See Rambo v. American S. Ins. Co., 839 F.2d 1415, 1419 n. 6 (10th Cir.1988). First, the defendants must have sufficient contact with the forum state so that the exercise of jurisdiction will not offend traditional notions of fair play and substantial justice. Second, the defendants must have purposefully availed themselves of the privileges of conducting activities in the forum state. Finally, the quality and nature of the defendants’ contacts must be such that it is reasonable, in the context of our federal system of government, to require the defendant to appear in the forum state. Id.; Marcus Food Co. v. Family Foods of Tallahassee, Inc., 729 F.Supp. 753, 757-58 (D.Kan.1990). A defendant can establish contacts with the forum state sufficient to support jurisdiction in one of two ways. Specific jurisdiction exists when a defendant purposely avails himself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws, and the claims against him arise out of those contacts. Kuenzle v. HTM Sport-Und Freizeitgerate AG, 102 F.3d 453, 455 (10th Cir.1996). General jurisdiction lies when the defen dant’s contacts with the forum state are so continuous and systematic that the state may exercise personal jurisdiction even when the claims are unrelated to the defendant’s contacts with the forum state. Trierweiler v. Croxton and Trench Holding Corp., 90 F.3d 1523, 1533 (10th Cir.1996). Plaintiff asserts no basis for general jurisdiction. Further, the court finds plaintiff has failed to establish specific jurisdiction with respect to Mr. Walker and Mr. Baker. Neither one of these individuals “purposely availed” himself of the privilege of conducting activities within Kansas. It appears Mr. Walker did have telephone contact with Mr. Tyler, a Kansas resident, but that alone is insufficient, as Mr. Tyler initiated the conversations for his own economic benefit. Furthermore, the claims against Mr. Walker and" }, { "docid": "11681280", "title": "", "text": "1990. Significantly, however, only two of those cases were filed after 1992. Plaintiff also alleges that defendant has appeared as a defendant in eight cases in Kansas state court. All of those cases were filed in 1990 or 1991. In short, other than maintaining his Kansas law license, defendant has had very few contacts with Kansas in recent years. These limited contacts are not sufficiently “continuous and systematic” to enable this court to exercise general jurisdiction over defendant. See Trierweiler, 90 F.3d at 1543-44 (Colorado did not have general jurisdiction over nonresident defendant where contacts with Colorado included admission to practice law in the Tenth Circuit, owning property in Colorado, maintaining joint bank account in Colorado and traveling to state several times a year); Wilson v. Belin, 20 F.3d 644, 650-51 (5th Cir.1994) (Texas did not have general jurisdiction over nonresident defendant where contacts with Texas included carrying malpractice insurance through a Texas law firm, doing three legal projects in Texas in three years, giving legal seminar in Texas and serving as a pro bono consultant to a Dallas historical society), cited with approval in Trierweiler, 90 F.3d at 1544; First Trust Nat’l Ass’n v. Jones, Walker, Waechter, Poitevent, Carrere & Denegre, 996 F.Supp. 585 (S.D.Miss.1998) (Louisiana law firm, a nonresident defendant in legal malpractice action, was not subject to general jurisdiction of Mississippi court where only contacts with Mississippi included occasional representation of Mississippi clients and some members of firm were licensed to practice law in Mississippi); see also Crea v. Busby, 48 Cal.App.4th 509, 515-16, 55 Cal.Rptr.2d 513 (1996) (California did not have general jurisdiction over nonresident defendant in legal malpractice action where defendant’s contacts with California included only maintenance of California law license). In summary, the court concludes that its exercise of personal jurisdiction over defendant with respect to plaintiff Eichen-wald’s case would violate the requirements of due process. Accordingly, the court denies defendant’s motion to dismiss plaintiffs first amended complaint, but transfers plaintiffs case to the United States District Court for the Western District of Missouri pursuant to 28 U.S.C. § 1631. IT IS THEREFORE ORDERED" }, { "docid": "13628044", "title": "", "text": "Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977). With these well-established principles in mind, the Court begins its due process analysis by looking to whether the defendant has had “minimum contacts” with the forum arising out of the present litigation. In its brief, the plaintiff describes only one “contact” that the defendant has had with the forum. The plaintiff writes: “In the present case, Defendants provided a legal opinion regarding Mississippi properties at the request of a Mississippi client. This action arises out of that contact.” (Pl.’s Resp. at 6). The defendants respond to this allegation, asserting that Jones, Walker did not prepare the opinion letter at the request of a Mississippi client. (Def.’s Reply at 1). Unlike the plaintiff, the defendant supports this contention with affidavit testimony of William H. Hines. The affidavit provides in part that “Jones, Walker had no contact with BCBI and dealt solely with attorneys from the Akin Gump [Texas based] and Gibson Dunn [Texas based] law firms in connection with the rendering of the legal opinion in question.” (Supp. Aff. of William H. Hines at 2-3). However, the plaintiff responds by pointing to the opinion letter itself, which begins: We have acted as special maritime counsel to Biloxi Casino Belle Incorporated, a Mississippi corporation (“Mortgagor”), in connection with the transactions set forth in that certain First Preferred Fleet Mortgage dated October 12, 1993 (the “Fleet Mortgage”). (Pl.’s Reply at 2). Nevertheless, the Fifth Circuit has held that “[t]he bare existence of an attorney-client relationship is not sufficient” to confer personal jurisdiction over a nonresident attorney. Trinity Indus., Inc. v. Myers & Associates, 41 F.3d 229, 230 (5th Cir.1995). In Trinity, the Fifth Circuit found personal jurisdiction in Texas where the nonresident attorney considered Trinity, a Texas corporation, a “major client;” represented the company for over eight years; and appeared pro hac vice for the client in the Northern District of Texas over a three-year period. Id. at 231. Here, there is nothing more than an alleged attorney-client relationship between an out-of-state defendant and an in-state client. Other than the alleged" }, { "docid": "11681277", "title": "", "text": "(10th Cir.1990) (nonresident detective subject to specific jurisdiction where plaintiffs’ negligence claims arose out of detective’s contacts with Kansas — detective’s visit to plaintiffs at their home in Kansas). Finally, there is no evidence in the record that defendant ever telephoned plaintiff in Kansas or ever mailed plaintiff correspondence in Kansas. These facts, undisputed by plaintiff, establish that defendant did not “purposefully direct” his activities toward Kansas. Moreover, the only connection that plaintiff has demonstrated between her cause of action and defendant’s contacts with Kansas is that plaintiff was a Kansas resident at the time defendant entered into the contract for legal services. As another judge in this district has recognized, “[j]ur-isdiction cannot rest on the mere fortuity of the plaintiffs residence.” Continental American Corp. v. First Nat’l Bank, Civ.A. No. 93-1415-MLB, 1994 WL 326771, at *3 (D.Kan. June 22, 1994) (although defendant was subject to long-arm jurisdiction under “tortious act” prong because plaintiff claimed economic injuries in Kansas, subjecting defendant to suit in Kansas would violate due process requirements). In sum, defendant’s conduct here falls short of the “purposeful availment” required for this court to assert specific jurisdiction. See Trinity Indus., Inc. v. Myers & Assocs., Ltd., 41 F.3d 229, 230 (5th Cir.1995) (“The bare existence of an attorney-client relationship is not' sufficient” to confer personal jurisdiction over nonresident attorney.); First Trust Nat’l Ass’n v. Jones, Walker, Waechter, Poitevent, Carrere & Denegre, 996 F.Supp. 585, 590 (S.D.Miss.1998) (Mississippi did not have specific jurisdiction over nonresident law firm in legal malpractice action where law firm’s only contact with Mississippi arising out plaintiffs cause of action was attorney-client relationship with plaintiff, a Mississippi resident); Biederman v. Schnader, Harrison, Siegal & Lewis, 765 F.Supp. 1057, 1059-61 (D.Kan.1991) (nonresident law firm’s entering into contract for legal services with Kansas resident not sufficient to subject law firm to personal jurisdiction in Kansas where dispute arose out of law firm’s representation of Kansas resident in litigation taking place in other forums). 2. General Jurisdiction The court, then, turns to address whether the assertion of general jurisdiction over defendant is warranted because of any contacts defendant" }, { "docid": "13628043", "title": "", "text": "for service of process in Mississippi, and has never advertised or otherwise solicited business in Mississippi. While Jones, Walker does occasionally represent Mississippi residents, and some members of the firm are licensed to practice law here, this does not constitute “systematic and continuous” contacts, sufficient to establish general jurisdiction. Helicopteros, 466 U.S. at 416; see also Myers v. Emery, 697 S.W.2d 26,31 (Tex.Ct.App.1985). Therefore, the Court is unable to exercise general jurisdiction in this action. “Specific jurisdiction,” however, is personal jurisdiction based on contacts with the forum state that are related to the particular controversy. Helicopteros, 466 U.S. at 414. Even a single purposeful contact may in a proper case be sufficient to meet the requirement of minimum contacts when the cause of action arises from the contact. Micromedia v. Automated Broadcast Controls, 799 F.2d 230, 234 (5th Cir. 1986). To exercise specific jurisdiction, the Court must examine the relationship among the defendants, the forum, and the litigation to determine whether maintaining the suit offends traditional notions of fair play and substantial justice. Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977). With these well-established principles in mind, the Court begins its due process analysis by looking to whether the defendant has had “minimum contacts” with the forum arising out of the present litigation. In its brief, the plaintiff describes only one “contact” that the defendant has had with the forum. The plaintiff writes: “In the present case, Defendants provided a legal opinion regarding Mississippi properties at the request of a Mississippi client. This action arises out of that contact.” (Pl.’s Resp. at 6). The defendants respond to this allegation, asserting that Jones, Walker did not prepare the opinion letter at the request of a Mississippi client. (Def.’s Reply at 1). Unlike the plaintiff, the defendant supports this contention with affidavit testimony of William H. Hines. The affidavit provides in part that “Jones, Walker had no contact with BCBI and dealt solely with attorneys from the Akin Gump [Texas based] and Gibson Dunn [Texas based] law firms in connection with the rendering of the legal" }, { "docid": "22264196", "title": "", "text": "Trierweiler asserts that Colorado did have both general and specific jurisdiction over Watt, and if personal jurisdiction was lacking, the court should have transferred rather than dismissed the claims. We review the district court’s jurisdictional rulings de novo. Doe v. National Medical Servs., 974 F.2d 143, 145 (10th Cir.1992). We review the district court’s decision on whether to transfer under a clear abuse of discretion standard. Scheidt v. Klein, 956 F.2d 963, 965 (10th Cir.1992). Although we agree that the district court lacked personal jurisdiction, we reverse the district court. A Colorado did not have specific jurisdiction over Watt. Trierweiler alleges numerous connections between Watt and Colorado but fails to illustrate adequately how his own alleged injuries arose from Watt’s forum-related conduct. Although Watt was engaged in business in Colorado in various capacities in conjunction with Aesir, it does not seem that these in-state activities influenced Trierweiler to make the loans. Trier-weiler alleges that Watt called him on the telephone to encourage the investment, but these communications took place while Trier-weiler was in Michigan and Watt was in Wyoming. This conduct falls short of the “purposeful availment” required for Colorado to assert specific jurisdiction. See Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239-40, 2 L.Ed.2d 1283 (1958). Colorado did not have general jurisdiction over Watt, either. Trierweiler claims Watt’s “continuous and systematic activities” in Colorado sufficed to establish general jurisdiction. Specifically, Trierweiler alleges that Watt: (1) lived in Colorado from 1977-1981 (well before the events at issue here) and was then associated with a local legal foundation; (2) is admitted to practice law in the Tenth Circuit; (3) owned some property in Colorado; (4) has a joint bank account in Colorado; (5) travels here several times a year; (6) was a limited partner in a Colorado limited partnership until 1990; and (7) was a member of the proposed advisory board of Aesir, in which capacity he consulted the officers of C&T and received reimbursement for some travel expenses. Under general jurisdiction, a nonresident defendant may be subject to a state’s jurisdiction even when the alleged injury is" }, { "docid": "16072481", "title": "", "text": "considered such factors as: (1) whether the corporation solicits business in the state through a local office or agents; (2) whether the corporation sends agents into the state on a regular basis to solicit business; (3) the extent to which the corporation holds itself out as doing business in the forum state, through advertisements, listings or bank accounts; and (4) the volume of business conducted in the state by the corporation”) (citing 4 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1069, at 348-55 (2d ed.1987)). Plaintiffs respond that the Trierweiler factors weigh in favor of exercising general personal jurisdiction over Lindamood-Bell. Specifically, Plaintiffs contend that Linda-mood-Bell’s contacts with Colorado have been continuous and systematic because Lindamood-Bell (1) maintained an office in Denver during 1996, (2) operated a World Wide Web site that can be accessed by people in Colorado, (3) mailed solicitations for courses and products to residents of Colorado, (4) conducted programs in Colorado, (5) consummated four contracts with three Colorado school districts, and (6) sent the cease and desist letters to Plaintiffs. As an initial matter, I note that the Trienueiler factors are neither exhaustive nor necessarily determinative of the general personal jurisdiction inquiry, as Defendants suggest. The Tenth Circuit employed the factors in Trierweiler as guides to the general personal jurisdiction inquiry. See Trierweiler, 90 F.3d at 1533 (“In assessing contacts with a forum, courts have considered such factors as ...”) (emphasis added) (citing 4 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1069). See also 4 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1069 at 348-49 (noting that personal jurisdiction has been found under myriad factors other than the ones specifically discussed). Instead, the dispositive inquiry is whether Defendants have enjoyed the “benefits and protections of the forum state’s laws,” Burger King, 471 U.S. at 474, 105 S.Ct. 2174, such that they “should reasonably anticipate being haled into court there.” Asahi, 480 U.S. at 109, 107 S.Ct. 1026 (quoting World-Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. 559). I conclude that general" }, { "docid": "16072480", "title": "", "text": "46 F.3d 1071, 1077 (10th Cir.1995), but that opinion includes no mention of its subsequent history. See id. The court in Far West also seemingly concluded, as I do, that Burt applies solely to libel claims. See Far West, 46 F.3d at 1077-80; National Petroleum Marketing, 902 F.Supp. at 1466-67. Given this uncertainty, even if I were inclined to find that sending two letters to Plaintiffs’ attorney in Colorado is sufficient to create specific personal jurisdiction, I would not rely on Burt. For the foregoing reasons, specific personal juris diction does not exist with respect to Defendants. 2. a. Lindamood-Bell argues that general personal jurisdiction does not exist with respect to it. Specifically, LindamoodBell claims that it does not have an office in Colorado, does not hold itself out as doing business in Colorado, and derives less than one percent of its income from Colorado sources. Lindamood-Bell concludes that general personal jurisdiction cannot be established under the factors identified in Trienueiler. See Trierweiler; 90 F.3d at 1533 (“In assessing contacts with a forum, courts have considered such factors as: (1) whether the corporation solicits business in the state through a local office or agents; (2) whether the corporation sends agents into the state on a regular basis to solicit business; (3) the extent to which the corporation holds itself out as doing business in the forum state, through advertisements, listings or bank accounts; and (4) the volume of business conducted in the state by the corporation”) (citing 4 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1069, at 348-55 (2d ed.1987)). Plaintiffs respond that the Trierweiler factors weigh in favor of exercising general personal jurisdiction over Lindamood-Bell. Specifically, Plaintiffs contend that Linda-mood-Bell’s contacts with Colorado have been continuous and systematic because Lindamood-Bell (1) maintained an office in Denver during 1996, (2) operated a World Wide Web site that can be accessed by people in Colorado, (3) mailed solicitations for courses and products to residents of Colorado, (4) conducted programs in Colorado, (5) consummated four contracts with three Colorado school districts, and (6) sent the cease and" } ]

[ { "docid": "22717197", "title": "", "text": "appellate state court ... is a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise.” At 237. (Emphasis supplied.) Thus, under some conditions, federal authority may not be bound even by an intermediate state appellate court ruling. It follows here then, that when the application of a federal statute is involved, the decision of a state trial court as to an underlying issue of state law should a fortiori not be controlling. This is but an application of the rule of Erie R. Co. v. Tompkins, supra, where state law as announced by the highest court of the State is to be followed. This is not a diversity case but the same principle may be applied for the same reasons, viz., the underlying substantive rule involved is based on state law and the State’s highest court is the best authority on its own law. If there be no decision by that court then federal authorities must apply what they find to be the state law after giving “proper regard” to relevant rulings of other courts of the State. In this respect, it may be said to be, in effect, sitting as a state court. Bernhardt v. Polygraphic Co., 350 U. S. 198 (1956). We believe that this would avoid much of the uncertainty that would result from the “non-adversary” approach and at the same time would be fair to the taxpayer and protect the federal revenue as well. The judgment in No. 240 is therefore affirmed while that in No. 673 is reversed and remanded for further proceedings not inconsistent with this opinion. It is so ordered. Illustrative of the conflict among the circuits are: Gallagher v. Smith, 223 F. 2d 218 (C. A. 3d Cir., 1955); Faulkerson’s Estate v. United States, 301 F. 2d 231 (C. A. 7th Cir.), cert. denied, 371 U. S. 887 (1962); Pierpont v. C. I. R., 336 F. 2d 277 (C. A. 4th Cir., 1964), cert. denied, 380 U. S." } ]

[ { "docid": "21054341", "title": "", "text": "Care] shall be subject to any claim, lien or offset of the State of California, and any claim of the United States of America made pursuant to federal statute, but shall not otherwise be subject to execution, levy, attachment, garnishment, or other legal process, and no transfer or assignment, at law or in equity, of any right of a provider of health care to any payment shall be enforceable against the state, a fiscal intermediary or carrier. The Court of Appeal found the statute precluded Manalis from enforcing its assignment of Medi-Cal funds against the state of California. It also found the statute to be constitutional, despite Manalis’ equal protection and due process challenges. In the course of its discussion of the constitutional issues, the court commented in a footnote: The statute does not declare the assignment void as between the parties. It is limited to the situation of unenforceability of an assignment in a manner which will defeat a claim of the state or the United States. 47 Cal.App.3d at 676 n.l, 121 Cal.Rptr. at 95 n.l. The California Supreme Court declined to review the case. Like California, the government levied upon the Medi-Cal money owed the hospital to obtain the employment taxes owed it. It received $22,493.91 from Blue Shield in 1973 and claims another $52,280.40 still held by Blue Shield. Manalis brought suit against the United States in federal district court, asserting its prior right to the funds because of its perfected security interest. The district court agreed with Manalis. Although the Gedulig footnote indicated to the contrary, the district court found that § 14115.5 did not make Manalis’ claim unenforceable against the United States. Moreover, it found that Manalis’ interest was properly a “security interest” under I.R.C. § 6323(h)(1) and therefore prior to the government’s subsequent tax lien under § 6323(a), Manalis Finance Co. v. United States, 442 F.Supp. 579 (C.D.Cal.1977). On appeal, the government makes essentially two claims: (1) that the district court erred in interpreting § 14115.5 contrary to the ruling of the state court; and (2) that the district court erred in finding" }, { "docid": "666810", "title": "", "text": "part of the statute provides that a health-care provider’s assignment of its right to receive Medi-Cal payments is not enforceable against the state, a fiscal intermediary or a carrier. As compared with the foregoing, the purpose .of this part of the statute is less clear. The provision can be read to free paying entities — the state, a fiscal intermediary or carrier — from competing claims, brought by assignors and assignees, to the right to Medi-Cal payments. Under this interpretation, both the first and second parts of the statute protect paying entities: the first part protects against legal process, and the second part protects against attempts to enforce assignments. Since an attempt to enforce an assignment would often involve legal process, the parts overlap. The United States urges a different interpretation of the second part of the statute, in accordance with dictum in an opinion by a California court, Manalis Finance Co. v. Gedulig, 47 Cal.App.3d 672, 121 Cal.Rptr. 93 (1975). The facts in Gedulig are similar to the facts in this case, except that Gedulig involved state, rather than federal, tax levies. The court held that the state tax lien had priority because the competing security interest was based solely on a factor’s rights as assignee, which rights are not “enforceable against the state” under Section 14115.5. The court went on to say in a footnote that: The statute does not declare the assignment void as between the parties [assign- or and assignee]. It is limited to the situation of unenforceability of an assignment in a manner which will defeat a claim of the state or the United States. 121 Cal.Rptr. at 95 n. 1. The United States would probably prevail here if this reasoning were followed. This court is not bound by the decision of the state Court of Appeal, Commissioner of Internal Revenue v. Estate of Bosch, 387 U.S. 456, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967), and declines to follow its dictum, which marks two unacceptable departures from the express language of the statute. First, the dictum substitutes the words “the state or the United States”" }, { "docid": "21054339", "title": "", "text": "EUGENE A. WRIGHT, Circuit Judge: This appeal involves conflicting claims to Medical funds owed Manchester Community Hospital. The dispute is between Manalis, a lender holding a perfected security interest in the hospital’s accounts receivable, and the United States, which claims the money under a federal tax lien resulting from the hospital’s failure to pay federal employment taxes. The government appeals from a decision that, under I.R.C. § 6323, the security interest had priority over the federal tax lien. It contends that the district court erred in its interpretation of § 14115.5 of the California Welfare and Institutions Code, which concerns an assignee’s right to assert a claim to Medi-Cal funds. In addition, it asserts that the court’s application of I.R.C. § 6323 was erroneous. This court’s jurisdiction derives from 28 U.S.C. § 1291. We conclude that the district court correctly interpreted and applied both statutes and we affirm its decision. FACTS Manchester Community Hospital, owned by GAB Corporation, borrowed money from Manalis, assigning its accounts receivable as collateral and security for the loan. A U.C.C. financing statement reflecting this assignment was filed in California in 1971. The statement served to perfect Manalis’ security interest. Cal.Com.Code § 9302. Funds owed by Medi-Cal were included in the hospital’s accounts receivable. These funds were to be paid out by Blue Shield as a fiscal intermediary for the state in the administration of the Medi-Cal program. The hospital failed to pay its state and federal employment taxes in 1972-73. To compensate for the state tax deficiency, California levied upon and received from Blue Shield $14,384.37 that had been owed the hospital by Medi-Cal. Manalis sued in state court to recover the funds, asserting that its prior right to them was established by its perfected security interest. The state trial court held for the state and was affirmed by the state Court of Appeal in Manalis Finance Co. v. Gedulig, 47 Cal.App.3d 672, 121 Cal.Rptr. 93 (1975). The basis for the latter’s decision was § 14115.5 of the California Welfare and Institutions Code, which says: Moneys payable or rights existing under this chapter [Basic Health" }, { "docid": "21054340", "title": "", "text": "financing statement reflecting this assignment was filed in California in 1971. The statement served to perfect Manalis’ security interest. Cal.Com.Code § 9302. Funds owed by Medi-Cal were included in the hospital’s accounts receivable. These funds were to be paid out by Blue Shield as a fiscal intermediary for the state in the administration of the Medi-Cal program. The hospital failed to pay its state and federal employment taxes in 1972-73. To compensate for the state tax deficiency, California levied upon and received from Blue Shield $14,384.37 that had been owed the hospital by Medi-Cal. Manalis sued in state court to recover the funds, asserting that its prior right to them was established by its perfected security interest. The state trial court held for the state and was affirmed by the state Court of Appeal in Manalis Finance Co. v. Gedulig, 47 Cal.App.3d 672, 121 Cal.Rptr. 93 (1975). The basis for the latter’s decision was § 14115.5 of the California Welfare and Institutions Code, which says: Moneys payable or rights existing under this chapter [Basic Health Care] shall be subject to any claim, lien or offset of the State of California, and any claim of the United States of America made pursuant to federal statute, but shall not otherwise be subject to execution, levy, attachment, garnishment, or other legal process, and no transfer or assignment, at law or in equity, of any right of a provider of health care to any payment shall be enforceable against the state, a fiscal intermediary or carrier. The Court of Appeal found the statute precluded Manalis from enforcing its assignment of Medi-Cal funds against the state of California. It also found the statute to be constitutional, despite Manalis’ equal protection and due process challenges. In the course of its discussion of the constitutional issues, the court commented in a footnote: The statute does not declare the assignment void as between the parties. It is limited to the situation of unenforceability of an assignment in a manner which will defeat a claim of the state or the United States. 47 Cal.App.3d at 676 n.l, 121 Cal.Rptr." }, { "docid": "1134772", "title": "", "text": "the like are “cash proceeds”. All other proceeds are “non-cash proceeds”. (2) Except where this Article otherwise provides, a security interest continues in collateral notwithstanding sale, exchange or other disposition thereof by the debtor unless his action was authorized by the secured party in the security agreement or otherwise, and also continues in any identifiable proceeds including collections received by the debtor. 12A P.S.Pa. § 9-306(1), (2) (emphasis added). The inexactness of the UCC framers, in defining precisely what constitutes “proceeds” under § 9-306, has led to sharp controversy among the courts and has spawned numerous articles and commentaries. Initially, this Court must determine whether it should foray into this legal quagmire in light of: (1) the lack of applicable state law on the subject; and, (2) the recently proposed amendment to § 9-306, which clearly and expressly includes insurance proceeds within the definition of “proceeds,” and which the Pennsylvania legislature has, to date, failed to adopt. I. Choice of Law This is a case of first impression in both Pennsylvania state and federal courts. In deciding issues founded upon state law, federal courts must determine state law by looking to either state legislative pronouncements or the decisions of the state’s highest court. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Where the highest court of the state or the legislature has not spoken, “federal authorities must apply what they find to be the state law after giving ‘proper regard’ to relevant rulings of other courts of the state . . . [thus] it may be said to be, in effect, sitting as a state court.” Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1783, 18 L.Ed.2d 886 (1967); Bernhardt v. Polygraphic Co., 350 U.S. 198, 203, 76 S.Ct. 273, 100 L.Ed. 199 (1956). Furthermore, in addressing the precise issue of whether insurance monies constitute “proceeds” under § 9-306, the Fifth Circuit Court of Appeals recently held in Aetna Ins. Co. v. Texas Thermal Industries, Inc., 591 F.2d 1035 (5th Cir. 1979), that: Resolution of the question of" }, { "docid": "14621696", "title": "", "text": "relevant state law allows the board to delegate power to dismiss the action to a special litigation committee, and whether such state laws are consistent with relevant federal law. In light of Burks, we must determine (1) whether California law requires the dismissal of an action once a duly delegated committee determines that the action is not in the corporation’s best interests, and (2) whether such a rule is consistent with the Securities Exchange Act of 1934. We answer both questions in the affirmative. THE APPLICABLE LAW Because Disney is a California corporation, California law controls. Our search for the applicable state, law follows the guidelines established by the Supreme Court: [T]he State’s highest court is the best authority on its own law. If there be no decision by that court then federal authorities must apply what they find to be the state law after giving “proper regard” to relevant rulings of other courts of the State. In this respect, it may be said to be, in effect, sitting as a state court. Commissioner of Internal Revenue v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1783, 18 L.Ed.2d 886 (1967), quoting Bernhardt v. Polygraphic Co., 350 U.S. 198, 76 S.Ct. 273, 100 L.Ed. 199 (1956). We accord “substantial deference” to the district judge’s interpretation of the law of the state in which he sits. United States v. Valley National Bank, 524 F.2d 199, 201 (9th Cir. 1975). The California Supreme Court has never faced the issue presented here; we therefore “sit as a state court” and look for guidance from intermediate appellate courts in California, and from courts in other jurisdictions which have recently considered the question. THE BUSINESS JUDGMENT RULE California law has long recognized the “business judgment rule,” holding that directors’ decisions in the day to day management of the corporation may not be attacked by shareholders so long as the directors exercised their best “business judgment” in making those decisions. This rule applies to the courts as well: Neither the court nor minority shareholders can substitute their judgment for that of the corporation “where" }, { "docid": "6020506", "title": "", "text": "applies to the regulation of marine insurance indemnity contracts. See Wilburn Boat Co. v. Fireman’s Fund Insurance Co., 348 U.S. 310, 75 S.Ct. 368, 99 L.Ed. 337 (1955). Nevertheless, although state law applies substantively, we cannot forget our obligation to treat merchant seamen with a “special solicitude.” Accordingly, we allow appellants an opportunity to develop their arguments and to show that neither an established nor inflexible rule, consistent with constitutional principles, forecloses them from obtaining satisfaction of their judgments from appellee insurance carrier. We therefore affirm the district court on the substantive issues raised below and remand for further proceedings on the equal protection issue consistent with this opinion. AFFIRMED IN PART AND REMANDED IN PART. . Appellants do not appeal the district court’s ruling that New York law governs this diversity action. . In applying New York law, we follow, as did the district court, the guidelines established by the Supreme Court: [T]he State’s highest court is the best authority on its own law. If there be no decision by that court then federal authorities must apply what they find to be the state law after giving “proper regard” to relevant rulings of other courts of the State. In this respect, it may be said to be, in effect, sitting as a state court. Commissioner of Internal Revenue v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1782, 18 L.Ed.2d 886 (1967), quoting Bernhardt v. Polygraphic Co., 350 U.S. 198, 76 S.Ct. 273, 100 L.Ed. 199 (1956). . We decline to accept appellants’ invitation to hold, on the authority of Orion Insurance Co. v. Firemen’s Insurance Co., 46 Cal.App.3d 374, 120 Cal.Rptr. 222 (1975), Olympic Towing Corp. v. Nebel Towing Co., 419 F.2d 230 (5th Cir. 1969), cert. denied, 397 U.S. 989, 90 S.Ct. 1120, 25 L.Ed.2d 396 (1970), and Coleman v. Jahncke Service, Inc., 341 F.2d 956 (5th Cir. 1965), that this policy is one of liability. Liman and Cucurillo interpret the law of New York, and, therefore, provide reliable guidance. . Section 167(4) reads as follows: The provisions of this section shall not apply ..." }, { "docid": "666812", "title": "", "text": "for the statute’s “the state, a fiscal intermediary or carrier” as those entities against which an assignment cannot be enforced. There is no basis for this judicial amendment of the clear language of Section 14115.5. The statute neither directly nor by inference, renders assignments unenforceable against the United States. Second, the California court asserts in its footnote that the purpose of the second part of the statute is to prevent the “defeat [of] a claim” of the state or the United States. The statute, however, says nothing about claims brought by the enumerated entities, but rather provides that assignments are not enforceable against the entities. While this court does not rely heavily on whether an entity seeking protection under the statute is a plaintiff or defendant, the court does find that a fair inference from the language is that the legislature intended to protect the enumerated entities in their roles as holders and payors of Medi-Cal benefits. Here, the United States asks much more. It invokes the statute’s protection, not as a Medi-Cal paying entity defending against a claim, but as a tax lienor in an unrelated matter seeking to have its interest declared superi- or to the interest of any assignee, no matter how or when the assignee’s interest arose. The court finds it unlikely that the California legislature intended, by a statute in the Welfare and Institutions Code, to grant rights to the United States as tax lienor that are uncontestably superior to the rights of a provider’s assignee. The court concludes that Manalis has a valid security interest protected under local law and prior to the interest of the United States. Thus, the levies by the United States are wrongful. Manalis is entitled to recover the sum held by the United States pursuant to the levy, and is declared to have an interest prior to that of the United States in the subject funds now held by Blue Shield. . However, the parts are not coextensive. The first part refers to “moneys payable or rights” being “subject to” legal process, thus preventing claims against a Medi-Cal payment" }, { "docid": "23601228", "title": "", "text": "automatically controlling. The Supreme Court in Bosch summarized current practice in diversity cases as follows: A.T.&T. Co., 311 U.S. 223, 61 S.Ct. 179, 85 L.Ed. 139 (1940), this Court further held that ‘an intermediate appellate state court . . . is a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise.’ At 237, 61 S.Ct. [179] at 183. (Emphasis supplied.) Thus, under some conditions, federal authority may not be bound even by an intermediate state appellate court ruling. [E]ven in diversity cases this Court has further held that while the decrees of Tower state courts’ should be ‘attributed some weight . . . the decision [is] not controlling . . . ’ where the highest court of the State has not spoken on the point. King v. Order of Travelers, 333 U.S. 153, 160-161, 68 S.Ct. [488], at 492, 92 L.Ed. 608 (1948). And in West v. This is but an application of the rule of Erie R. Co. v. Tompkins, supra, where state law as announced by the highest court of the State is to be followed. This is not a diversity case but the same principle may be applied for the same reasons, viz., the underlying substantive rule involved is based on state law and the State’s highest court is the best authority on its own law. If there be no decision by that court then federal authorities must apply what they find to be the state law after giving ‘proper regard’ to relevant rulings of other courts of the State. In this respect, it may be said to be, in effect, sitting as a state court. Bernhardt v. Polygraphic Co., 350 U.S. 198, 76 S.Ct. 273, 100 L.Ed. 199 (1956). Commissioner v. Estate of Bosch, 387 U.S. at 465, 87 S.Ct. at 1782 We conclude, therefore, that while we may not ignore the decision of an intermediate appellate court, we are free to reach a contrary result if, by analyzing “other persuasive data,”" }, { "docid": "21054345", "title": "", "text": "an organ of the State and its determination, in the absence of more convincing evidence of what the state law is, should be followed by a federal court in deciding a state question. Id. at 177-78, 61 S.Ct. at 178. This circuit has used language similar to that in Fidelity Union Trust. See, e. g., Community Nat. Bank v. Fidelity & Deposit Co., 563 F.2d 1319, 1321 n.l. (9th Cir. 1977); Klingebiel v. Lockheed Aircraft Corp., 494 F.2d 345, 346 n.2 (9th Cir. 1974). Recently it has also quoted and applied the Bosch standard. See Lewis v. Anderson, slip op. 457 (9th Cir. Oct. 29, 1979); Preaseau v. Prudential Insur. Co., 591 F.2d 74, 82 n.9 (9th Cir. 1979). Under either standard the district court’s analysis of § 14115.5 was proper. 2. The Gedulig dictum We agree with the district court’s observation that: the dictum substitutes the words “the state or the United States” for the statute’s “the state, a fiscal intermediary or carrier” as those entities against which an assignment cannot be enforced. There is no basis for this judicial amendment of the clear language of Section 14115.5. 442 F.Supp. at 582. The Gedulig dictum can hardly be called “considered dictum.” Cf. Rocky Mountain Fire & Casualty Co. v. Dairyland Insur. Co., 452 F.2d 603, 603-04 (9th Cir. 1971) (“A federal court exercising diversity jurisdiction is bound to follow the considered dicta as well as the holdings of state court decisions.”) The state court inserted the footnote only to explain that § 14115.5 would not render an assignment of Medi-Cal funds void or unenforceable in all instances. The footnote was not intended to be a definitive resolution of the statute’s meaning with reference to federal claims. There was no error in the district court’s interpretation of § 14115.5. Section 6323 I.R.C. § 6323 sets forth the priority rules to be used when a federal tax lien has been imposed. The statute was significantly amended by the Federal Tax Lien Act of 1966. A primary purpose of the Federal Tax Lien Act was “to conform the lien provisions of the" }, { "docid": "21054346", "title": "", "text": "is no basis for this judicial amendment of the clear language of Section 14115.5. 442 F.Supp. at 582. The Gedulig dictum can hardly be called “considered dictum.” Cf. Rocky Mountain Fire & Casualty Co. v. Dairyland Insur. Co., 452 F.2d 603, 603-04 (9th Cir. 1971) (“A federal court exercising diversity jurisdiction is bound to follow the considered dicta as well as the holdings of state court decisions.”) The state court inserted the footnote only to explain that § 14115.5 would not render an assignment of Medi-Cal funds void or unenforceable in all instances. The footnote was not intended to be a definitive resolution of the statute’s meaning with reference to federal claims. There was no error in the district court’s interpretation of § 14115.5. Section 6323 I.R.C. § 6323 sets forth the priority rules to be used when a federal tax lien has been imposed. The statute was significantly amended by the Federal Tax Lien Act of 1966. A primary purpose of the Federal Tax Lien Act was “to conform the lien provisions of the internal revenue laws to the concepts developed in [the] Uniform Commercial Code” and thereby to “[improve] the status of private secured creditors.” H.R.Rep.No.1884, 89th Cong., 2d Sess. 1-2 (1966). At issue in this case is § 6323(h)(1). Section 6323(a) provides that an unfiled tax lien is not valid as against a prior security interest, and § 6323(h)(1) defines “security interest” as: any interest in property acquired by contract for the purpose of securing payment or performance of an obligation or indemnifying against loss or liability. A security interest exists at any time (A) if, at such time the property is in existence and the interest has become protected under local law against a subsequent judgment lien arising out of an unsecured obligation, and (B) to the extent that, at such time, the holder has parted with money or money’s worth. The government argues that Manalis’ interest is not a “security interest” because it is not “protected under local law against a subsequent judgment lien.” It relies on language from Dragstrem v. Obermeyer, 549 F.2d 20," }, { "docid": "23601229", "title": "", "text": "application of the rule of Erie R. Co. v. Tompkins, supra, where state law as announced by the highest court of the State is to be followed. This is not a diversity case but the same principle may be applied for the same reasons, viz., the underlying substantive rule involved is based on state law and the State’s highest court is the best authority on its own law. If there be no decision by that court then federal authorities must apply what they find to be the state law after giving ‘proper regard’ to relevant rulings of other courts of the State. In this respect, it may be said to be, in effect, sitting as a state court. Bernhardt v. Polygraphic Co., 350 U.S. 198, 76 S.Ct. 273, 100 L.Ed. 199 (1956). Commissioner v. Estate of Bosch, 387 U.S. at 465, 87 S.Ct. at 1782 We conclude, therefore, that while we may not ignore the decision of an intermediate appellate court, we are free to reach a contrary result if, by analyzing “other persuasive data,” we predict that the New Jersey Supreme Court would hold otherwise. In short, an intermediate appellate court holding is presumptive evidence, rather than an absolute pronouncement, of state law. Thus we would not be bound to follow the Appellate Division’s statement of law in Palladino even if that statement represented the Court’s holding, which it does not. As we have noted above, Palladino’s discussion of the alleged one-year limitation on letters of credit is dictum. Although one commentator has aptly observed that “the obligation to accept local law extends not merely to definitive decisions, but to considered dicta as well,” we note that those courts accepting state court dicta have indicated that they do so not in blind adherence to gratuitous discussion in a state court opinion but rather in deference to the persuasiveness of its reasoning. For example, in Metropolitan Life Insurance Co. v. Chase, 294 F.2d 500 (3d Cir.1961), this Court found dicta in a New Jersey Appellate Division case to be “adequate evidence” of the state’s position on the domicile of the" }, { "docid": "666809", "title": "", "text": "any payment shall be enforceable against the state, a fiscal intermediary or carrier. The United States contends that Manalis has no security interest in the Medi-Cal payments that is “protected under local law” and superior to the federal tax lien, because the assignment giving rise to the purported security interest is not “enforceable” against the United States under this statute. The statute may be divided into two parts. The first part provides that the state and the United States, but no other persons or entities, may make claims against “moneys payable” under Medi-Cal. This provision frees paying entities, such- as Blue Shield, from legal process regarding Medi-Cal payments, except process initiated by the state or the United States. Since the federal tax levies asserted here are process initiated by the United States, they are permitted by the statute. The first part of the statute therefore allows the federal tax levies to be asserted, but says nothing about the priority of the claims of the United States upon which the tax levies are founded. The second part of the statute provides that a health-care provider’s assignment of its right to receive Medi-Cal payments is not enforceable against the state, a fiscal intermediary or a carrier. As compared with the foregoing, the purpose .of this part of the statute is less clear. The provision can be read to free paying entities — the state, a fiscal intermediary or carrier — from competing claims, brought by assignors and assignees, to the right to Medi-Cal payments. Under this interpretation, both the first and second parts of the statute protect paying entities: the first part protects against legal process, and the second part protects against attempts to enforce assignments. Since an attempt to enforce an assignment would often involve legal process, the parts overlap. The United States urges a different interpretation of the second part of the statute, in accordance with dictum in an opinion by a California court, Manalis Finance Co. v. Gedulig, 47 Cal.App.3d 672, 121 Cal.Rptr. 93 (1975). The facts in Gedulig are similar to the facts in this case, except that" }, { "docid": "666811", "title": "", "text": "Gedulig involved state, rather than federal, tax levies. The court held that the state tax lien had priority because the competing security interest was based solely on a factor’s rights as assignee, which rights are not “enforceable against the state” under Section 14115.5. The court went on to say in a footnote that: The statute does not declare the assignment void as between the parties [assign- or and assignee]. It is limited to the situation of unenforceability of an assignment in a manner which will defeat a claim of the state or the United States. 121 Cal.Rptr. at 95 n. 1. The United States would probably prevail here if this reasoning were followed. This court is not bound by the decision of the state Court of Appeal, Commissioner of Internal Revenue v. Estate of Bosch, 387 U.S. 456, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967), and declines to follow its dictum, which marks two unacceptable departures from the express language of the statute. First, the dictum substitutes the words “the state or the United States” for the statute’s “the state, a fiscal intermediary or carrier” as those entities against which an assignment cannot be enforced. There is no basis for this judicial amendment of the clear language of Section 14115.5. The statute neither directly nor by inference, renders assignments unenforceable against the United States. Second, the California court asserts in its footnote that the purpose of the second part of the statute is to prevent the “defeat [of] a claim” of the state or the United States. The statute, however, says nothing about claims brought by the enumerated entities, but rather provides that assignments are not enforceable against the entities. While this court does not rely heavily on whether an entity seeking protection under the statute is a plaintiff or defendant, the court does find that a fair inference from the language is that the legislature intended to protect the enumerated entities in their roles as holders and payors of Medi-Cal benefits. Here, the United States asks much more. It invokes the statute’s protection, not as a Medi-Cal paying entity" }, { "docid": "21054343", "title": "", "text": "that Manalis’ security interest met the definitional requirements of § 6323(h)(1). DISCUSSION Section 14115.5 The government argues that the district court erroneously failed to follow the California Court of Appeal’s decision on § 14115.5 in two respects. First, it did not defer to the holding of Gedulig. The state court had held the state’s tax claim to be prior to Manalis’ security interest. The federal court said in dictum that § 14115.5 protected the state only in its capacity as Medi-Cal payor. Because this contention is not relevant to our decision, we discuss it no further. Second, the district court did not defer to dictum in Gedulig (in the footnote quoted above) to the effect that § 14115.5 would make an assignment of Medi-Cal funds unenforceable against a federal claim. The government contends that the district court was bound by the state court opinion. 1. Deference to state court In Commissioner v. Estate of Bosch, 387 U.S. 456, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967), the Supreme Court said that, when application of a federal statute depends on an issue of state law, a federal court should defer to the ruling of the highest court of the state on that issue. Absent such a decision by the highest state court, federal authorities must apply what they find to be the state law after giving “proper regard” to relevant rulings of other courts of the State. In this respect, it may be said to be, in effect, sitting as a state court. Id. at 465, 87 S.Ct. at 1783, citing Bernhardt v. Polygraphic Co., 350 U.S. 198, 76 S.Ct. 273, 100 L.Ed. 199 (1956). The district court cited Bosch to support the statement that it was “not bound by the decision of the state Court of Appeal.” 442 F.Supp. at 582. The government argues that the court misapplied Bosch and should have applied a test such as that in Fidelity Union Trust Co. v. Field, 311 U.S. 169, 61 S.Ct. 176, 85 L.Ed. 109 (1940), which says: An intermediate state court in declaring and applying the state law is acting as" }, { "docid": "1134773", "title": "", "text": "In deciding issues founded upon state law, federal courts must determine state law by looking to either state legislative pronouncements or the decisions of the state’s highest court. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Where the highest court of the state or the legislature has not spoken, “federal authorities must apply what they find to be the state law after giving ‘proper regard’ to relevant rulings of other courts of the state . . . [thus] it may be said to be, in effect, sitting as a state court.” Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1783, 18 L.Ed.2d 886 (1967); Bernhardt v. Polygraphic Co., 350 U.S. 198, 203, 76 S.Ct. 273, 100 L.Ed. 199 (1956). Furthermore, in addressing the precise issue of whether insurance monies constitute “proceeds” under § 9-306, the Fifth Circuit Court of Appeals recently held in Aetna Ins. Co. v. Texas Thermal Industries, Inc., 591 F.2d 1035 (5th Cir. 1979), that: Resolution of the question of course requires us to look to state law. Unfortunately, there are no Texas decisions directly on point. We believe, however, that the Texas Supreme Court, were it presented with this question, would hold that the insurance fund constitutes proceeds of the secured collateral. 591 F.2d at 1039. The sole Pennsylvania state court decision that relates tangentially to the issue of the status of insurance monies under § 9-306 is Hoffman v. Snack, 37 Pa.D. & C.2d 145, 2 UCC Rept. 862 (Allegheny County 1964), which the plaintiff urges us to follow as precedent. In Hoffman, plaintiff sued for personal injuries and property damages arising out of an automobile accident involving plaintiff’s car. Before the court was a petition to intervene as a party-plaintiff filed by a finance company which held a security interest in the damaged automobile. The car was not insured at the time of the accident, although the debtor was required to maintain insurance on the car as part of the security agreement. The court denied the motion to intervene but stated in" }, { "docid": "4506549", "title": "", "text": "then only for the sum so ascertained to be payable by the Association. Motion of Liverpool & London to Dismiss or Stay, ¶ 11a, Ex. A (rules 88, 89). Skuld uses the same contractual language. For other relevant arbitration clauses, see West of England Notice of Motion, Ex. C; and UK Club Motion for Summary Judgment, Hamilton Aff. V 5(c), Ex. 1 & 2. Some of the policies also contain a New York suable clause. . We note that the Second Circuit reached a different conclusion in Riordan v. Nationwide Mut. Fire Ins. Co., 977 F.2d 47 (2d Cir.1992), certified questions withdrawn, 984 F.2d 69 (2d Cir.1993). Riordan was decided before the New York Court of Appeals resolved the issue of private rights of action under § 2601. See Rocano-va, supra. In applying New York law, we adhere to the following guidelines voiced by the Supreme Court: [T]he State's highest court is the best authority on its own law. If there be no decision by that court then federal authorities must apply what they find to be the state law after giving \"proper regard” to relevant rulings of other courts of the State. In this respect, it may be said to be, in effect, sitting as a state court. Commissioner of Internal Revenue v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1782, 18 L.Ed.2d 886 (1967), quoting Bernhardt v. Polygraphic Co. of Am., Inc., 350 U.S. 198, 76 S.Ct. 273, 100 L.Ed. 199 (1956). . A case cited by the Clubs, Genesco Entertainment, A Div. of Lymutt Indus., Inc. v. Koch, 593 F.Supp. 743 (S.D.N.Y.1984), does not refute our holding. In Genesco, the district court stated that § 349 does not apply to \"[a] breach of a private contract affecting no one but the parties to the contract, whether that breach be negligent or intentional, [because the conduct] is not an act or practice affecting the public interest.” Id., 593 F.Supp. at 751-752. We find it obvious that a nexus exists between the Trust and the public interest. As we stated earlier, the Trust was created to" }, { "docid": "732310", "title": "", "text": "case is that the difficulties of ascertaining state law are fraught with less mischief than disregard of the basic nature of diversity jurisdiction, namely, the enforcement of state-created rights and state policies going to the heart of those rights.... As long as there is diversity jurisdiction, ‘estimates’ are necessarily often all that federal courts can make in ascertaining what the state court would rule to be its law.” Bernhardt v. Polygraphic Co., 350 U.S. 198, 208-09, 76 S.Ct. 273, 279, 100 L.Ed. 199 (1956) (Frankfurter, J., concurring) (footnote omitted). See also, King v. Order of Travelers, 333 U.S. 153, 160-61, 68 S.Ct. 488, 492, 92 L.Ed. 608 (1948). Similarly, in Commissioner v. Estate of Bosch, 387 U.S. 456, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967), the Court held that where no decision by a State’s highest court exists with respect to characterization of a property interest for purposes of estate tax liability, federal courts must apply “what they find to be the state law”: “This is but an application of the rule of Erie R. Co. v. Tompkins, supra, where state law as announced by the highest court of the State is to be followed. This is not a diversity case but the same principle may be applied for the same reasons, viz., the underlying substantive rule involved is based on state law and the State’s highest court is the best authority on its own law. If there be no decision by that court then federal authorities must apply what they find to be the state law after giving ‘proper regard’ to relevant rulings of other courts of the State. In this respect, it may be said to be, in effect, sitting as a state court. Bern hardt v. Polygraphic Co., 350 U.S. 198 [76 S.Ct. 273, 100 L.Ed. 199] (1956).” Id. at 465, 87 S.Ct. at 1782. In the Second Circuit, the Court of Appeals has expressed its “established position” as follows: “[W]hen a federal court must determine state law, it should not slavishly follow lower or even upper court decisions but ought to consider all the data the" }, { "docid": "21054344", "title": "", "text": "statute depends on an issue of state law, a federal court should defer to the ruling of the highest court of the state on that issue. Absent such a decision by the highest state court, federal authorities must apply what they find to be the state law after giving “proper regard” to relevant rulings of other courts of the State. In this respect, it may be said to be, in effect, sitting as a state court. Id. at 465, 87 S.Ct. at 1783, citing Bernhardt v. Polygraphic Co., 350 U.S. 198, 76 S.Ct. 273, 100 L.Ed. 199 (1956). The district court cited Bosch to support the statement that it was “not bound by the decision of the state Court of Appeal.” 442 F.Supp. at 582. The government argues that the court misapplied Bosch and should have applied a test such as that in Fidelity Union Trust Co. v. Field, 311 U.S. 169, 61 S.Ct. 176, 85 L.Ed. 109 (1940), which says: An intermediate state court in declaring and applying the state law is acting as an organ of the State and its determination, in the absence of more convincing evidence of what the state law is, should be followed by a federal court in deciding a state question. Id. at 177-78, 61 S.Ct. at 178. This circuit has used language similar to that in Fidelity Union Trust. See, e. g., Community Nat. Bank v. Fidelity & Deposit Co., 563 F.2d 1319, 1321 n.l. (9th Cir. 1977); Klingebiel v. Lockheed Aircraft Corp., 494 F.2d 345, 346 n.2 (9th Cir. 1974). Recently it has also quoted and applied the Bosch standard. See Lewis v. Anderson, slip op. 457 (9th Cir. Oct. 29, 1979); Preaseau v. Prudential Insur. Co., 591 F.2d 74, 82 n.9 (9th Cir. 1979). Under either standard the district court’s analysis of § 14115.5 was proper. 2. The Gedulig dictum We agree with the district court’s observation that: the dictum substitutes the words “the state or the United States” for the statute’s “the state, a fiscal intermediary or carrier” as those entities against which an assignment cannot be enforced. There" }, { "docid": "21054342", "title": "", "text": "at 95 n.l. The California Supreme Court declined to review the case. Like California, the government levied upon the Medi-Cal money owed the hospital to obtain the employment taxes owed it. It received $22,493.91 from Blue Shield in 1973 and claims another $52,280.40 still held by Blue Shield. Manalis brought suit against the United States in federal district court, asserting its prior right to the funds because of its perfected security interest. The district court agreed with Manalis. Although the Gedulig footnote indicated to the contrary, the district court found that § 14115.5 did not make Manalis’ claim unenforceable against the United States. Moreover, it found that Manalis’ interest was properly a “security interest” under I.R.C. § 6323(h)(1) and therefore prior to the government’s subsequent tax lien under § 6323(a), Manalis Finance Co. v. United States, 442 F.Supp. 579 (C.D.Cal.1977). On appeal, the government makes essentially two claims: (1) that the district court erred in interpreting § 14115.5 contrary to the ruling of the state court; and (2) that the district court erred in finding that Manalis’ security interest met the definitional requirements of § 6323(h)(1). DISCUSSION Section 14115.5 The government argues that the district court erroneously failed to follow the California Court of Appeal’s decision on § 14115.5 in two respects. First, it did not defer to the holding of Gedulig. The state court had held the state’s tax claim to be prior to Manalis’ security interest. The federal court said in dictum that § 14115.5 protected the state only in its capacity as Medi-Cal payor. Because this contention is not relevant to our decision, we discuss it no further. Second, the district court did not defer to dictum in Gedulig (in the footnote quoted above) to the effect that § 14115.5 would make an assignment of Medi-Cal funds unenforceable against a federal claim. The government contends that the district court was bound by the state court opinion. 1. Deference to state court In Commissioner v. Estate of Bosch, 387 U.S. 456, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967), the Supreme Court said that, when application of a federal" } ]

[ { "docid": "11626123", "title": "", "text": "court erred in denying severance under Fed.R.Crim.P. 14. Severance motions are addressed to the sound discretion of the trial judge, and their denial will be reviewed only for abuse. United States v. Smolar, 557 F.2d 13, 21 (1st Cir. 1977). Appellants contend that the trial judge abused his discretion because they planned to present antagonistic defenses, viz., Barreto planned to argue that he had nothing to do with the two ounces of cocaine, that it belonged only to Reyes, and that he was being prosecuted only because he had associated with such a bad man. It is well settled that “antagonistic defenses do not per se require severance, even if the defendants are hostile or attempt to cast the blame on each other”. United States v. Davis, 623 F.2d 188, 194 (1st Cir. 1980), quoting United States v. Becker, 585 F.2d 703, 707 (4th Cir. 1978), cert. denied, 439 U.S. 1080, 99 S.Ct. 862, 59 L.Ed.2d 50 (1979). Severance is required only where the conflict is so prejudicial and the defenses are so irreconcilable that the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty. Id. Here, Reyes did not deny that he possessed the cocaine; he only denied distributing it and having that intent. Barreto denied both possession and intent to distribute. These defenses become irreconcilable only if Barreto is allowed to make the further allegation that Reyes intended to distribute the cocaine. The trial court upheld Reyes’s objections to any attempt to make such argument. Whatever minor conflicts may have existed between the defendants’ approach to the case, they have not made the “strong showing of prejudice” necessary to show an abuse of discretion by the trial court. See United States v. Richman, 600 F.2d 286, 299 (1st Cir. 1979). Next, both appellants challenge the trial court’s decision to admit into evidence the testimony regarding the heroin episode, and the portions of video and audio tapes portraying that episode. At trial, Barreto preserved this issue by objection to Vega’s testimony about heroin. The court’s denial of his motion made it clear that any similar" } ]

[ { "docid": "4075447", "title": "", "text": "contends that irreparable harm was done to his case because the jury, in learning that O’Malley was under pending state impeachment proceedings, gained knowledge of matters highly prejudicial to the defense of the remaining counts of the indictment. In order to obtain a severance under rule 14 of Federal Rules of Criminal Procedure, a defendant must show that prejudice will result from the inclusion of the count in question. The defendant must show that the prejudice can not be alleviated by the trial court and as a result, the defendant will be unable to obtain a fair trial. United States v. DeSimone, 660 F.2d 532, 539 (5th Cir.1981), cert. denied, 455 U.S. 1027, 102 S.Ct. 1732, 72 L.Ed.2d 149 (1982). The granting of a rule 14 motion for severance, however, lies within the sound discretion of the trial court and is reversible only for an abuse of discretion. United States v. Salomon, 609 F.2d 1172, 1175 (5th Cir.1980); cf. United States v. Kopituk, 690 F.2d 1289, 1355 (11th Cir.1982) (decision of whether relief is appropriate from prejudicial joinder is within the sound discretion of the trial court, reviewable only for an abuse of that discretion.) No abuse of discretion exists in this case. The government presented evidence in a way designed not to prejudice O’Malley. O’Malley, has not shown prejudice. The trial court did not abuse its discretion by refusing to grant a severance. CONCLUSION Accordingly, we hold (1) that the evidence was sufficient to support O’Malley’s convictions for mail fraud, (2) that the evidence was sufficient to support O’Malley’s convictions for extortion, (3) that O'Malley’s cross-examination as to his failure to report campaign contributions was proper impeachment as a matter affecting his credibility as a witness, and (4) that the trial court properly denied O’Malley’s motion for severance. We affirm. AFFIRMED. . Title 18 U.S.C.A. § 1341, provides: Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply," }, { "docid": "8731769", "title": "", "text": "VANCE, Circuit Judge: For most people, being stranded for several days aboard a disabled fishing boat in the Gulf of Mexico twenty miles northwest of Grand Cayman Island would constitute a misfortune of epic proportions. The travails of appellants in this case, however, began in earnest only when a boarding party from the Coast Guard cutter DECISIVE retrieved them from their immobile vessel, the DON CARLOS — along with 12,-000 pounds of marijuana. All five persons found aboard the DON CARLOS were convicted of possessing marijuana on board a United States flag vessel with intent to distribute, in violation of 21 U.S.C. § 955a(a), and of conspiracy to commit the substantive offense in violation of 21 U.S.C. § 955c. United States residents Felix Calvo-Castillo, Francisco Vicente-Leon, and Ibrahim Nunez present the only serious issues for our consideration on appeal. We reject their contentions in sequence and therefore affirm the convictions of all appellants. I. SEVERANCE Appellants Calvo-Castillo, Vicente-Leon, and Nunez (the severance appellants) protest the district court’s denial of their motions for severance from appellants Magdaniel-Mora and Dekom, made once before and repeatedly during trial. They contend that severance should have been granted because Magdaniel-Mora and Dekom asserted a defense irreconcilable with and mutually exclusive of that argued by counsel for the severance appellants in closing argument. To repeat the familiar, persons indicted together ordinarily should be tried together. United States v. Barnes, 681 F.2d 717, 721 (11th Cir.1982), cert. denied, 460 U.S. 1046, 103 S.Ct. 1447, 75 L.Ed.2d 802 (1983). This court will only review a trial court’s refusal to grant a severance under Fed.R.Crim.P. 14 for abuse of discretion. United States v. DeSimone, 660 F.2d 532, 539 (5th Cir. Unit B 1981), cert. denied, 455 U.S. 1027, 102 S.Ct. 1732, 72 L.Ed.2d 149 (1982). To establish an abuse of discretion the defendant must demonstrate that without severance he was unable to receive a fair trial and that he suffered compelling prejudice against which the trial court could offér no protection. United States v. Horton, 646 F.2d 181, 186 (5th Cir. Unit A), cert. denied, 454 U.S. 970, 102" }, { "docid": "6744576", "title": "", "text": "Cir. 1975); United States v. Gambrill, 449 F.2d 1148, 1159 (D.C.Cir. 1971). The inconvenience and expense to the Government and witnesses of separate trials must be weighed by the trial court against the prejudice to the defendants inherent in a joint trial. The trial court’s determination will not be disturbed unless the denial of a severance deprives the defendants of a fair trial and results in a miscarriage of justice. United States v. Becker, 585 F.2d 703, 706 (4th Cir. 1978), cert. denied, 439 U.S. 1080, 99 S.Ct. 862, 59 L.Ed.2d 50 (1979); United States v. Walsh, 544 F.2d 156, 160 (4th Cir. 1976), cert. denied, 429 U.S. 1093, 97 S.Ct. 1105, 51 L.Ed.2d 539 (1977); United States v. Shuford, 454 F.2d 772, 775-76 (4th Cir. 1971). The burden is upon the appellant to show affirmatively an abuse of discretion on the part of the trial court in denying severance. Becker, supra, 707; United States v. Crisona, 271 F.Supp. 150 (D.C.N.Y.1967). The appellant has not met that burden in the instant action. The appellant was ably represented by counsel. Appellant does not allege that his attorney did not provide competent counsel, rather he questions the trial tactics of co-defendant’s counsel. “Antagonistic defenses do not per se require severance, even if the defendants are hostile or attempt to cast the blame on each other.” Becker, supra, 707; United States v. Barber, 442 F.2d 517, 530 (3rd Cir. 1971), cert. denied, 404 U.S. 958, 92 S.Ct. 327, 30 L.Ed.2d 275 (1971). Rather, to obtain severance on the ground of conflicting defenses, it must be demonstrated that the conflict is so prejudicial that defenses are irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty. Becker, supra, 707; United States v. Robinson, 432 F.2d 1348, 1351 (D.C.Cir. 1970); United States v. Ehrlichman, 546 F.2d 910 (D.C.Cir. 1976), cert. denied, 429 U.S. 1120, 97 S.Ct. 1155, 51 L.Ed.2d 570 (1977). The court finds that the conflict present here is not so prejudicial, and that the trial court did not abuse its discretion in failing to grant a severance." }, { "docid": "5287646", "title": "", "text": "F.3d at 693 (quotation and citation omitted). Finally, the decision to grant severance to a defendant from a joint trial is within the district court’s discretion. United States v. Ortiz, 315 F.3d 873, 898 (8th Cir.2002). 1. Authentication of the Note Young contends that the note found in her purse at arrest would not have been introduced at a severed trial. Young also argues that the district court erroneously admitted the note because of a lack of authentication; however, as previously discussed, Mock sufficiently authenticated this note. See Part II.D., supra. Young is correct that the note likely would not have been introduced against her except that the district court tried Young and Mock together. However, the jury apparently gave the note little credence, if any, considering that it still found Mock guilty. In light of the overwhelming evidence of her guilt, we conclude that Young has not shown severe prejudice, and the district court did not abuse its discretion. 2. Mutually Antagonistic Defenses The Supreme Court has held that mutually antagonistic defenses are not prejudicial per se. Zafiro, 506 U.S. at 538, 113 S.Ct. 933. Mutually antagonistic defenses necessitate severance only when the jury may unjustifiably infer that the defendants’ conflicting defenses alone demonstrate that both are guilty. Sandstrom, 594 F.3d at 644. The government may nonetheless offer sufficient evidence that both are guilty independent of the parties’ antagonism. Id. at 645. Severance is not required where one defendant merely shifts blame to a codefendant. United States v. Bordeaux, 84 F.3d 1544, 1547 (8th Cir.1996). Where codefendants blame each other as the sole actor, severance is not required where the government does not ask the jury to decide which defendant murdered the victim but rather that they murdered the victim together or conspired to murder the victim. Ortiz, 315 F.3d at 898. Mock contends that the parties’ joint trial compromised their right to a fair trial because they advanced mutually antagonistic defenses. Mock and Young essentially accuse each other of killing Griesbauer alone. Here, like in Ortiz, two codefen-dants accuse each other of committing a shooting alone. Id. In" }, { "docid": "9874051", "title": "", "text": "conspiracy cases. United States v. Gonzalez, 804 F.2d 691, 694 (11th Cir.1986); United States v. Alvarez, 755 F.2d 830, 837 (11th Cir.), cert. denied, 474 U.S. 905, 106 S.Ct. 274, 88 L.Ed.2d 235 (1985). Nevertheless, defendants may request relief from prejudicial joinder under Fed.R. Crim.P. 14. The decision to grant a motion for severance lies within the sound discretion of the trial judge. United States v. Pruitt, 763 F.2d 1256, 1263 (11th Cir.1985), cert. denied, 474 U.S. 1084, 106 S.Ct. 856, 88 L.Ed.2d 896 (1986); United States v. Magdaniel-Mora, 746 F.2d 715, 718 (11th Cir.1984). To establish an abuse of discretion, it is not enough for appellant to show that acquittal would have been more likely had he been tried separately. United States v. Walker, 720 F.2d 1527, 1533 (11th Cir.1983). Instead, “the defendant must demonstrate that without severance he was unable to receive a fair trial and that he suffered compelling prejudice against which the trial court could offer no protection.” Magdaniel-Mora, 746 F.2d at 718. The assertion of antagonistic defenses may satisfy the test for compelling prejudice. Gonzalez, 804 F.2d at 695. To prevail on the claim that severance is warranted due to antagonistic defenses, this circuit has stated that the appellants must show that the defenses were antagonistic to the point of being “irreconcilable or mutually exclusive.” Magdaniel-Mora, 746 F.2d at 718. In other words, “the essence of one defendant’s defense [must be] contradicted by a codefendant’s defense.” United States v. Berkowitz, 662 F.2d 1127, 1134 (5th Cir. Unit B 1981). The question of whether Perez-Garcia’s defense is irreconcilable with that of his co-appellants is a close one. This court has found defenses to be mutually irreconcilable where the sole defense of each defendant was the guilt of the other, United States v. Crawford, 581 F.2d 489, 492 (5th Cir.1978), where codefendants have given contradictory testimony as to their presence at the scene of the crime, United States v. Johnson, 478 F.2d 1129, 1132 (5th Cir.1973), or where one defendant incriminated the other at every opportunity. Gonzalez, 804 F.2d at 695. Appellants argue that the instant case" }, { "docid": "12813022", "title": "", "text": "A defendant is not entitled to severance because the proof is greater against a co-defendant. United States v. Anderson, 626 F.2d 1358, 1373 (8th Cir.1980); United States v. Williams, 604 F.2d 1102, 1119 (8th Cir.1979). Nor is a defendant entitled to a severance because a co-defendant has a criminal record. United States v. Dalzotto, 603 F.2d 642, 646 (7th Cir.1979), cert. denied, 444 U.S. 994, 100 S.Ct. 530, 62 L.Ed.2d 425 (1979). Hostility among defendants or the attempt of one defendant to save himself by inculpating another does not require that defendants be tried separately. United States v. Davis, 623 F.2d 188, 194 (1st Cir.1980); United States v. Vinson, 606 F.2d 149, 154 (6th Cir.1979). Neither does a difference in trial strategies mandate separate trials. United States v. Whitehead, 618 F.2d 523, 529 n. 11 (4th Cir.1980); United States v. Crawford, 581 F.2d 489, 491 (5th Cir.1978). The burden is on defendants to show that an antagonistic defense would present a conflict “so prejudicial that defenses are irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.” United States v. Davis, 623 F.2d 188, 194-195 (1st Cir.1980); United States v. Herring, 602 F.2d 1220, 1225 (5th Cir. 1979), cert. denied, 444 U.S. 1046, 100 S.Ct. 734, 62 L.Ed.2d 732 (1980); United States v. Haldeman, 559 F.2d 31, 71 (D.C.Cir. 1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977). Severance is not required merely because evidence on one joined count is “separable and distinct” from evidence on another. United States v. Lewis, 626 F.2d 940, 945 (D.C.Cir.1980). However, the evidence of one crime or series of crimes must be related to the others. United States v. Hatcher, 680 F.2d 438, 442 (6th Cir.1982). All of the counts in this indictment are related. There has been an insufficient showing by the defense to support the argument that prejudice results from the joinder of the defendants in this case. Redd, Richmond and Angel have failed to make the strong showing necessary to require severance where defendants are properly joined pursuant to Fed.R.Crim.P. 8(b)." }, { "docid": "794007", "title": "", "text": "to that of Felton. She asserts that the antagonism arises out of her former personal relationship with Felton. Specifically, Bruce claims that she was not part of the Felton conspiracy, that she merely followed Felton’s instructions, and that now she has learned that her name was forged in the purchase of personalty and that real property was placed in her name without her consent. She contends that she has records that would be exculpatory of her but inculpatory of Felton. A motion to sever is within the sound discretion of the court. United States v. De Larosa, 450 F.2d 1057 (3d Cir.1971). Antagonism, per se, between the defenses of the defendants does not require severance. United States v. Davis, 623 F.2d 188 (1st Cir.1980); United States v. Barber, 442 F.2d 517 (3d Cir. 1971). The desire of the defendants to blame each other is an insufficient reason as well. United States v. Talavera, 668 F.2d 625 (1st Cir.), cert. denied, 456 U.S. 978, 102 S.Ct. 2245, 72 L.Ed.2d 853 (1982). Severance will be granted only if a joint trial would be so prejudicial, that the defendant would be unable to obtain a fair trial. United States v. DeSimone, 660 F.2d 532 (5th Cir.), cert. denied, 455 U.S. 1027, 102 S.Ct. 1732, 72 L.Ed.2d 149 (1981). An antagonistic defense is sufficiently prejudicial only where the defenses are irreconcilable and mutually exclusive. United States v. Provenzano, 688 F.2d at 198-9. The defendant Bruce has not demonstrated any prejudice sufficient to warrant a severance. There is no indication that the defenses which she alleges will be presented are irreconcilable with, or mutually exclusive to, any defense that the defendant Felton intends to raise. Finally, there is no indication that the evidence is so complicated that a jury could not keep the evidence pertaining to any one defendant compartmentalized. United States v. Boscia, 573 F.2d 827 (3d Cir.), cert. denied, 436 U.S. 911, 98 S.Ct. 2248, 56 L.Ed.2d 411 (1978). The defendant’s motion will be denied. V Defendant Thurman Defendant Thurman has made a motion for an order requiring the government to affirm or" }, { "docid": "23504476", "title": "", "text": "best strategy to avoid conviction. Cotier relies on United States v. Crawford, 581 F.2d 489, 491 (5th Cir. 1978), to support his contention that antagonistic defenses can prejudice co-defendants to such a degree that they are denied a fair trial. But, as the court in Crawford noted, such defenses must conflict “to the point of being irreconcilable and mutually exclusive.” Id. (citations omitted). That is just not the situation here. In United States v. Barber, 442 F.2d 517, 530 (3d Cir.), cert. denied, 404 U.S. 846, 92 S.Ct. 148, 30 L.Ed.2d 83 (1971), we rejected a similar argument saying, “the mere presence of hostility among defendants” is insufficient to require separate trials. That is especially true in this case, where the hostility exhibited at the trial, if accepted by the jury, would be advantageous to the co-defendants. B. Provenzano takes a different tack on the severance issue. He contends that if there had been separate proceedings, Cotier would have testified. The fact that the trials were joined, and that Cotier exercised his right not to testify, Provenzano argues, amounted to an infringement on his rights of confrontation and compulsory process. At an earlier stage in the joint trial, Cotier’s attorney did represent to the court that if there were separate trials, Cotier would take the stand at the request of any defendant. Counsel apparently later had second thoughts on this matter and declined to proceed nonjury as to Cotier’s own case. Provenzano reasons that if Cotier had been tried first, there would have been no fifth amendment problem thereafter. But a defendant cannot compel a co-defendant to testify even if their trials are severed, United States v. Barber, 442 F.2d at 529, so more than a possibility that a co-defendant will testify is required. See United States v. Rosa, 560 F.2d 149, 156 (3d Cir.), cert. denied, 434 U.S. 862, 98 S.Ct. 191, 54 L.Ed.2d 135 (1977). We are not persuaded by Provenzano’s contention that he was substantially harmed by inability to use cross-examination to blunt or weaken the force of statements made by Cotier and admitted into evidence as" }, { "docid": "2155160", "title": "", "text": "that such prejudice arose when Spitler’s counsel, during opening statement and closing argument, stated that Spitler was a victim of extortion. Claiming that such comments reflected irreconcilable defenses from which the jury unjustifiably convicted them, defendants argue the district court erred in failing to grant their motions for mistrial and severance. Contrary to their contentions, however, defendants presented at trial largely consistent defenses that the payments to Carpenter were bona fide compensation. “Basically the defenses, weak as they were, paralleled each other, apart from some occasional friction or flare-up which, when considered in the context of the entire trial, were inconsequential.” United States v. Centracchio, 774 F.2d 856, 861 (7th Cir.1985). The “remarks made here and there by co-defendants’ counsel” did not warrant severance, United States v. DeSimone, 660 F.2d 532, 541 (5th Cir.), reh’g denied, 666 F.2d 592 (1981), cert. denied, 455 U.S. 1027, 456 U.S. 928, 102 S.Ct. 1732, 102 S.Ct. 1976, 72 L.Ed.2d 149, 72 L.Ed.2d 444 (1982), because the conflict raised by counsel’s argument did not “create[ ] a serious danger that the jury would seize upon it alone as the dispositive indicia of guilt.” United States v. Leonard, 494 F.2d 955, 967 (D.C.Cir.1974). Accord Wright, 783 F.2d at 1096; United States v. Boyd, 610 F.2d 521, 525-26 (8th Cir.1979), cert. denied, 444 U.S. 1089, 100 S.Ct. 1052, 62 L.Ed.2d 777 (1980); United States v. Davis, 623 F.2d 188, 194-95 (1st Cir.1980). See also Becker, 585 F.2d at 707. For these reasons, we conclude that “the absence of a serious conflict at trial between [the defendants],” Sellers, 658 F.2d at 232, indicates that the district court committed no abuse of discretion in denying defendants’ requests for a mistrial and severance. Implicitly arguing they were denied a fair trial because the potential for undue prejudice from irreconcilable defenses “forced both defendants into foregoing the right to take the stand,” defendants contend that “[e]ach attorney made the judgment that his client’s interests ... required that he not present a defense rather than take an action which would ensure his client’s conviction as a result of mutual fingerpointing.” Defendants’" }, { "docid": "4075446", "title": "", "text": "witness’s character for truthfulness or untruthfulness. United States v. Reid, 634 F.2d 469, 473 (9th Cir.1980), cert. denied, 454 U.S. 829, 102 S.Ct. 123, 70 L.Ed.2d 105 (1981). During direct testimony, O’Malley acknowledged his familiarity with the reporting laws. O’Malley’s direct testimony was intended to establish his knowledge of the reporting laws of Florida and his compliance with those laws. Cross-examination, therefore as to O’Malley’s failure to report cash contributions was related to the matter of O’Malley’s credibility as a witness and was proper impeachment pursuant to rule 611(b). O’Malley’s failure to report contributions, when he knew he was required to do so, directly reflected on his character for truthfulness. Examination as to this conduct was proper. IV. Whether the Trial Court Properly Denied O’Malley’s Motion for Severance O’Malley argues that the trial court erred in denying his motion to sever Count V of the indictment, because Count V charged O’Malley with extorting a check from Hardy Snow made payable to a law firm handling O’Malley’s legal defense. In denying his motion for severance, O’Malley contends that irreparable harm was done to his case because the jury, in learning that O’Malley was under pending state impeachment proceedings, gained knowledge of matters highly prejudicial to the defense of the remaining counts of the indictment. In order to obtain a severance under rule 14 of Federal Rules of Criminal Procedure, a defendant must show that prejudice will result from the inclusion of the count in question. The defendant must show that the prejudice can not be alleviated by the trial court and as a result, the defendant will be unable to obtain a fair trial. United States v. DeSimone, 660 F.2d 532, 539 (5th Cir.1981), cert. denied, 455 U.S. 1027, 102 S.Ct. 1732, 72 L.Ed.2d 149 (1982). The granting of a rule 14 motion for severance, however, lies within the sound discretion of the trial court and is reversible only for an abuse of discretion. United States v. Salomon, 609 F.2d 1172, 1175 (5th Cir.1980); cf. United States v. Kopituk, 690 F.2d 1289, 1355 (11th Cir.1982) (decision of whether relief is appropriate" }, { "docid": "23162977", "title": "", "text": "497, 503-04, 98 S.Ct. 824, 829-30, 54 L.Ed.2d 717 (1978). Thus, the defendant who, without asking for a mistrial gets one, will surely argue, and not unreasonably, that if he did not, as here, regard the alleged error as serious enough even to prompt his reaction, a court is effectively granting a mistrial over his objection without “manifest necessity” so that his retrial is barred. Id. at 505, 98 S.Ct. at 830. Furthermore, we point out that declaring a mistrial because of the conduct at trial of a co-defendant, as opposed to that of the government, may well encourage collusive conduct by defendants at a joint trial so as to set the stage for mistrials and possible reversals. The considerations we have set forth lead us to approach Thomson’s argument with considerable caution. As we have indicated, Thomson’s first asserted basis for relief, predicated on Kost’s attorney’s statement, is that the statement was inconsistent with Thomson’s defense. Our test for severance in this situation is not lightly met, as severance need be granted only if the defense theories are antagonistic “ ‘to the point of being irreconcilable and mutually exclusive.’ ” United States v. Provenzano, 688 F.2d at 198. See also United States v. Barber, 442 F.2d 517, 530 (3d Cir.), cert. denied, 404 U.S. 846, 92 S.Ct. 148, 30 L.Ed.2d 83 (1971) (stating that “the mere presence of hostility among defendants or the desire of one to exculpate himself by inculpating another” does not require severance). The Court of Appeals for the Fifth Circuit suggests that “[t]he defenses must be so antagonistic that the jury, in order to believe the defense of one defendant, must necessarily disbelieve the other defendant’s defenses.” United States v. Webster, 734 F.2d at 1053. The logic of granting a severance when there are irreconcilable and mutually exclusive defenses seems manifest. Defendants should not be placed in a position where the mere fact that they are being tried together will effectively require the jury to convict at least one of them, whereas in separate trials each could be acquitted. Here the offenses highlighted by Kost’s" }, { "docid": "794006", "title": "", "text": "expectation of privacy in the contents of the tape which he created and owned. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), Walter, 447 U.S. at 654, 100 S.Ct. at 2400. Because it must, for reasons stated above, be suppressed as to Felton, there is no way that it can be admitted in evidence at a joint trial against Serrao alone, because it is clear that to have relevance and meaning to the jury it must be revealed that it is a conversation between co-conspirators; i.e., Felton and Serrao, or under Count Eight a conversation between Felton and Serrao relative to the “whereabouts of John Zorak a/k/a Johnny, a co-conspirator in Count One above, and the location of a quantity of marihuana.” Count Eight, Indictment at Criminal No. 83-49. This obviously would violate Felton’s rights. Therefore, the contents of the tape will be suppressed as evidence in this case. IV Defendant Bruce Nancy Bruce has made a motion to sever on the grounds that her defense would be antagonistic to that of Felton. She asserts that the antagonism arises out of her former personal relationship with Felton. Specifically, Bruce claims that she was not part of the Felton conspiracy, that she merely followed Felton’s instructions, and that now she has learned that her name was forged in the purchase of personalty and that real property was placed in her name without her consent. She contends that she has records that would be exculpatory of her but inculpatory of Felton. A motion to sever is within the sound discretion of the court. United States v. De Larosa, 450 F.2d 1057 (3d Cir.1971). Antagonism, per se, between the defenses of the defendants does not require severance. United States v. Davis, 623 F.2d 188 (1st Cir.1980); United States v. Barber, 442 F.2d 517 (3d Cir. 1971). The desire of the defendants to blame each other is an insufficient reason as well. United States v. Talavera, 668 F.2d 625 (1st Cir.), cert. denied, 456 U.S. 978, 102 S.Ct. 2245, 72 L.Ed.2d 853 (1982). Severance will be granted only" }, { "docid": "7313593", "title": "", "text": "shows the painstaking care the judge displayed when he instructed the jurors on their note-taking. No error is manifest. C. Severance and Antagonistic Defenses Reservitz next asserts that the district court committed error when it failed to sever Reservitz’s trial from Baker’s because their defenses were antagonistic. The grant or denial of severance is clearly within the sound discretion of the trial court and its action on such a motion will be overturned only where there has been a clear abuse of such discretion. United States v. Davis, 623 F.2d 188, 194 (1st Cir.1980). The burden is upon appellant Reservitz to make a strong showing of prejudice in order to show that a denial of his severance motion constituted an abuse of discretion. United States v. Bautista, 731 F.2d 97 (1st Cir.1984); United States v. Arruda, 715 F.2d 671 (1st Cir.1983); United States v. Lochan, 674 F.2d 960, 967 (1st Cir.1982). Reservitz has made no such showing. The fact that two defendants assert antagonistic defenses does not per se require severance even if the defendants are hostile or attempt to cast the blame on each other. United States v. Davis, supra, at 194, quoting United States v. Becker, 585 F.2d 703, 707 (4th Cir.1978), cert. denied, 439 U.S. 1080, 99 S.Ct. 862, 59 L.Ed.2d 50 (1979). To obtain severance on the grounds of conflicting defenses Reservitz has to demonstrate that “the conflict is so prejudicial and the defenses are so irreconciliable that the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.” United States v. Talavera, 668 F.2d 625, 630 (1st Cir.1982), cert. denied, Pena v. United States, 456 U.S. 978, 102 S.Ct. 2245, 72 L.Ed.2d 853 (1982) ; United States v. Luna, 585 F.2d 1, 5 (1st Cir.1978), cert. denied, 439 U.S. 852, 99 S.Ct. 160, 58 L.Ed.2d 157 (1978). Reservitz contends that he was entitled to severance because the entrapment defense offered by Baker was antagonistic and mutually exclusive to his defense. Other circuits have held that “[a] co-defendant’s reliance on entrapment does not of itself justify reversing a refusal to sever but rather" }, { "docid": "794008", "title": "", "text": "if a joint trial would be so prejudicial, that the defendant would be unable to obtain a fair trial. United States v. DeSimone, 660 F.2d 532 (5th Cir.), cert. denied, 455 U.S. 1027, 102 S.Ct. 1732, 72 L.Ed.2d 149 (1981). An antagonistic defense is sufficiently prejudicial only where the defenses are irreconcilable and mutually exclusive. United States v. Provenzano, 688 F.2d at 198-9. The defendant Bruce has not demonstrated any prejudice sufficient to warrant a severance. There is no indication that the defenses which she alleges will be presented are irreconcilable with, or mutually exclusive to, any defense that the defendant Felton intends to raise. Finally, there is no indication that the evidence is so complicated that a jury could not keep the evidence pertaining to any one defendant compartmentalized. United States v. Boscia, 573 F.2d 827 (3d Cir.), cert. denied, 436 U.S. 911, 98 S.Ct. 2248, 56 L.Ed.2d 411 (1978). The defendant’s motion will be denied. V Defendant Thurman Defendant Thurman has made a motion for an order requiring the government to affirm or deny certain unlawful acts, for disclosure of information relating to those acts and for a “taint” hearing. The defendant seeks to know whether any evidence was seized in the course of or as a result of an illegal wiretap. This court finds that since the defendant has not asserted that any unlawful wiretapping has been used against him, he is not entitled to the order that he requests. Be cause the defendant seeks only to know if such wiretapping has occurred, and has not asserted that there has been such, the defendant has not articulated prerequisite “colorable” basis for his claim. Cruz v. Alexander, 669 F.2d 872 (2d Cir.1982); In re Evans, 452 F.2d 1239 (D.C.Cir.1971). While “mere assertion” of surveillance is sufficient without supporting evidence to require the government to respond under 18 U.S.C. § 3504, the assertion must state in a declarative fashion that surveillance has occurred. “An allegation that it ‘may’ have occurred will not suffice.” United States v. Rubin, 559 F.2d 975 (5th Cir. 1977), vacated on other grounds, 439 U.S." }, { "docid": "23652335", "title": "", "text": "conclude that Rollins’ proposed entrapment defense, if presented, would not have been mutually antagonistic to Slaughter’s defense. A reasonable jury could have concluded both that Slaughter was unaware of the illegal activity, and that Rollins only sold the cocaine to Agent Beck —as a result of government entrapment. A jury could therefore have acquitted both defendants. See United States v. Gironda, 758 F.2d 1201, 1220 (7th Cir.), cert. denied, 474 U.S. 1004, 106 S.Ct. 523, 88 L.Ed.2d 456 (1985) (defenses were not mutually exclusive even where one defendant’s opening statement implied that there was a conspiracy in which his codefendants participated, but denied his own participation); Moschiano, 695 F.2d at 246 (asserted defenses of entrapment and withdrawal from conspiracy prior to completion were held not to be mutually antagonistic. “The jury could well have believed that Moschiano had been entrapped when he carried out the sale of heroin and yet credited Bishop’s defense of withdrawal.”); United States v. Vadino, 680 F.2d 1329, 1335 (11th Cir.1982), cert. denied, 460 U.S. 1082, 103 S.Ct. 1771, 76 L.Ed.2d 344 (1983) (severance not required where several defendants in joint trial raised entrapment defense, even though this defense might have bolstered the credibility of the government’s witnesses). The mere fact that Slaughter attempted to shift the blame to Rollins did not create a mutual antagonism with her entrapment defense thereby mandating severance of their trials. Rollins contends that even if she and Slaughter did not present mutually antagonistic defenses, the actual conduct of Slaughter’s defense was so unduly prejudicial to her defense that it required severance of their trials. Severance can be granted if the actual conduct of one defendant’s defense unduly prejudices his or her codefendant. See, e.g., Goudy, 792 F.2d at 673. “This ground[ ] for severance, however, depends on a careful evaluation of facts elicited, prejudicial tendencies, and the entire course of the trial prior to the challenged conduct.” Banks, 687 F.2d at 973. The defendant bears the burden of demonstrating undue prejudice resulting from the joint trial. United States v. Oglesby, 764 F.2d 1273, 1275-76 (7th Cir.1985). To meet this burden," }, { "docid": "23162978", "title": "", "text": "the defense theories are antagonistic “ ‘to the point of being irreconcilable and mutually exclusive.’ ” United States v. Provenzano, 688 F.2d at 198. See also United States v. Barber, 442 F.2d 517, 530 (3d Cir.), cert. denied, 404 U.S. 846, 92 S.Ct. 148, 30 L.Ed.2d 83 (1971) (stating that “the mere presence of hostility among defendants or the desire of one to exculpate himself by inculpating another” does not require severance). The Court of Appeals for the Fifth Circuit suggests that “[t]he defenses must be so antagonistic that the jury, in order to believe the defense of one defendant, must necessarily disbelieve the other defendant’s defenses.” United States v. Webster, 734 F.2d at 1053. The logic of granting a severance when there are irreconcilable and mutually exclusive defenses seems manifest. Defendants should not be placed in a position where the mere fact that they are being tried together will effectively require the jury to convict at least one of them, whereas in separate trials each could be acquitted. Here the offenses highlighted by Kost’s attorney’s argument were the conspiracy charges against both Kost and Thomson and the charge of conducting a continuing criminal enterprise against Kost. But the jury was not placed in a position that to acquit Kost it had to accept his suggestion that Thomson was a member of the conspiracy. To the contrary, the jury could have simply concluded that, regardless of the relationship between Thomson and Kost, the government had not established the elements of the offense of conducting a continuing criminal enterprise. Thus, Kost’s attorney’s argument did not make this case into an “either or” situation as between the two defendants. Accordingly, the defenses, though arguably hostile, were not beyond reconciliation. We also point out that the defenses were not so hostile as Thomson suggests. There is, of course, no doubt that Thomson was involved with the conspirators. As he explains in his brief: “Mr. Thomson’s defense to conspiracy was that he was not a participant but that he was merely present. He argued that the evidence showed his involvement was minor and that" }, { "docid": "23034881", "title": "", "text": "Sixth Amendment Confrontation Clause rights under Bruton. A district court’s refusal to sever a trial is reviewed for an abuse of discretion. See United States v. Sarkisian, 197 F.3d 966, 978 (9th Cir.1999), cert. denied sub nom. Mikayelyan v. United States, 530 U.S. 1220, 120 S.Ct. 2230, 147 L.Ed.2d 260 (2000). A claim that the admission of a non-testifying codefendant’s out-of-court statement violated Bruton is reviewed de novo. See United States v. Peterson, 140 F.3d 819, 821 (9th Cir.1998). Confrontation Clause violations are subject to the harmless error test. See United States v. Ortega, 203 F.3d 675, 682 (9th Cir.2000). 1. Antagonistic Defenses According to Angwin, the defendants presented antagonistic defenses that warranted severing the trial. The United States counters that Khamis’s defense that she was duped did not preclude the jury accepting Angwin’s duress defense. To warrant severance on the basis of antagonistic defenses, codefendants must show that their defenses are irreconcilable and mutually exclusive. See United States v. Sherlock, 962 F.2d 1349, 1363 (9th Cir.1992). Defenses are mutually exclusive when “acquittal of one codefendant would necessarily call for the conviction of the other.” United States v. Tootick, 952 F.2d 1078, 1081 (9th Cir.1991); see United States v. Throckmorton, 87 F.3d 1069, 1072 (9th Cir.1996) (noting that “a defendant must show that the core of the codefendant’s defense is so irreconcilable with the core of his own defense that the acceptance of the codefendant’s theory by the jury precludes acquittal of the defendant”). Even when defendants present antagonistic defenses, such defenses “are not prejudicial per se.” Zafiro v. United States, 506 U.S. 534, 538, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993); see id. at 539, 113 S.Ct. 933 (noting that “a district court should grant a severance under [Federal] Rule [of Criminal Procedure] 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 guilty or innocence”). Here, there is little question that Ang-win and Khamis did not present defenses that were mutually exclusive such that their" }, { "docid": "23504475", "title": "", "text": "in taking the witness stand, and their pointed comments about being unable to cross-examine him, emphasized his decision not to testify. We are not persuaded, however, that there was a real antagonism in the defense strategies of this case. Rather, they were complementary, for if the jury had been persuaded that Cotier alone received the payoffs and was unconnected with any of the other defendants, there would have been a failure of proof on the conspiracy and RICO counts. Not only his co-defendants, but Cotier as well, would have walked away from the indictment had sole culpability been fastened on him. In short, the “ganging up” theory is unconvincing when it is realized that Cotier stood to benefit if the jury accepted the co-defendants’ theory that he was off on a frolic of his own. Indeed, in his summation, Cotier’s counsel argued that none of the money went to any of the co-defendants. In light of the overwhelming evidence against Cotier, putting as much distance between him and the defendant union officials was probably the best strategy to avoid conviction. Cotier relies on United States v. Crawford, 581 F.2d 489, 491 (5th Cir. 1978), to support his contention that antagonistic defenses can prejudice co-defendants to such a degree that they are denied a fair trial. But, as the court in Crawford noted, such defenses must conflict “to the point of being irreconcilable and mutually exclusive.” Id. (citations omitted). That is just not the situation here. In United States v. Barber, 442 F.2d 517, 530 (3d Cir.), cert. denied, 404 U.S. 846, 92 S.Ct. 148, 30 L.Ed.2d 83 (1971), we rejected a similar argument saying, “the mere presence of hostility among defendants” is insufficient to require separate trials. That is especially true in this case, where the hostility exhibited at the trial, if accepted by the jury, would be advantageous to the co-defendants. B. Provenzano takes a different tack on the severance issue. He contends that if there had been separate proceedings, Cotier would have testified. The fact that the trials were joined, and that Cotier exercised his right not to" }, { "docid": "2155159", "title": "", "text": "Spitler’s concern because neither Carpenter nor his counsel appeared at the hearing. In sum, defendants failed to present any actual substantiation for their allegations that the requisite degree of prejudice existed. E.g., Wilson, 434 F.2d at 499. Defendants’ weak presentations to the district court, therefore, indicated neither irreconcilable defenses nor that the jury would unjustifiably convict defendants solely from such conflict; thus, we cannot conclude that the district judge abused his discretion in denying the pretrial severance motions. Id.; Becker, supra; Haldeman, supra. Despite having properly assessed defendants’ inadequate pretrial showings, the district court had a continuing duty at all stages of the trial to grant severance if the requisite degree of prejudice appeared. Schaffer v. United States, 362 U.S. 511, 516, 80 S.Ct. 945, 948, 4 L.Ed. 921 (1960); United States v. Harris, 761 F.2d 394, 400 (7th Cir.1985); United States v. Dinneen, 463 F.2d 1036, 1042 (10th Cir.1972). See also United States v. Perry, 731 F.2d 985, 992 (D.C.Cir.1984); United States v. Engleman, 648 F.2d 473, 480 n. 5 (8th Cir.1981). Defendants contend that such prejudice arose when Spitler’s counsel, during opening statement and closing argument, stated that Spitler was a victim of extortion. Claiming that such comments reflected irreconcilable defenses from which the jury unjustifiably convicted them, defendants argue the district court erred in failing to grant their motions for mistrial and severance. Contrary to their contentions, however, defendants presented at trial largely consistent defenses that the payments to Carpenter were bona fide compensation. “Basically the defenses, weak as they were, paralleled each other, apart from some occasional friction or flare-up which, when considered in the context of the entire trial, were inconsequential.” United States v. Centracchio, 774 F.2d 856, 861 (7th Cir.1985). The “remarks made here and there by co-defendants’ counsel” did not warrant severance, United States v. DeSimone, 660 F.2d 532, 541 (5th Cir.), reh’g denied, 666 F.2d 592 (1981), cert. denied, 455 U.S. 1027, 456 U.S. 928, 102 S.Ct. 1732, 102 S.Ct. 1976, 72 L.Ed.2d 149, 72 L.Ed.2d 444 (1982), because the conflict raised by counsel’s argument did not “create[ ] a serious danger" }, { "docid": "8731770", "title": "", "text": "Magdaniel-Mora and Dekom, made once before and repeatedly during trial. They contend that severance should have been granted because Magdaniel-Mora and Dekom asserted a defense irreconcilable with and mutually exclusive of that argued by counsel for the severance appellants in closing argument. To repeat the familiar, persons indicted together ordinarily should be tried together. United States v. Barnes, 681 F.2d 717, 721 (11th Cir.1982), cert. denied, 460 U.S. 1046, 103 S.Ct. 1447, 75 L.Ed.2d 802 (1983). This court will only review a trial court’s refusal to grant a severance under Fed.R.Crim.P. 14 for abuse of discretion. United States v. DeSimone, 660 F.2d 532, 539 (5th Cir. Unit B 1981), cert. denied, 455 U.S. 1027, 102 S.Ct. 1732, 72 L.Ed.2d 149 (1982). To establish an abuse of discretion the defendant must demonstrate that without severance he was unable to receive a fair trial and that he suffered compelling prejudice against which the trial court could offér no protection. United States v. Horton, 646 F.2d 181, 186 (5th Cir. Unit A), cert. denied, 454 U.S. 970, 102 S.Ct. 516, 70 L.Ed.2d 388 (1981); United States v. Crawford, 581 F.2d 489, 491 (5th Cir.1978). This circuit recognizes that the assertion of antagonistic defenses may satisfy this test, but to do so the defenses must be irreconcilable and mutually exclusive. Crawford, 581 F.2d at 491. In other words, “the essence of one defendant’s defense [must be] contradicted by a co-defendant’s defense.” United States v. Berkowitz, 662 F.2d 1127, 1134 (5th Cir. Unit B 1981). Applying these principles, we conclude that the trial court did not abuse its discretion in denying the motions for severance. The severance appellants’ defense, which consisted solely of counsels’ closing arguments, was a claimed absence of evi dence sufficient to demonstrate to the jury beyond a reasonable doubt that appellants possessed the marijuana or that they knew of or participated in a conspiracy to possess the marijuana with intent to distribute. They argued that the government had shown only their presence aboard a vessel twenty miles off Grand Cayman Island, in other parts of which vessel marijuana was found to" } ]

[ { "docid": "22317220", "title": "", "text": "effective and a conflict first arose between the written terms of the contract and Feiner & Co.’s alleged understanding of the parties’ mutual in tent. Thus, Feiner & Co.'s cause of action for reformation based on mutual mistake is barred by the statute of limitations. III. Judgment on the Pleadings The district court granted Hal Roach Studios’ Rule 12(c) motion for judgment on the pleadings on its claim for a declaration that the film licenses would expire on or about September 27, 1986. For purposes of the motion, the allegations of the non-moving party must be accepted as true, while the allegations of the moving party which have been denied are assumed to be false. Doleman v. Meiji Mutual Life Ins. Co., 727 F.2d 1480, 1482 (9th Cir.1984); see also Austad v. United States, 386 F.2d 147, 149 (9th Cir.1967). Judgment on the pleadings is proper when the moving party clearly establishes on the face of the pleadings that no material issue of fact remains to be resolved and that it is entitled to judgment as a matter of law. Doleman, 727 F.2d at 1482. However, judgment on the pleadings is improper when the district court goes beyond the pleadings to resolve an issue; such a proceeding must properly be treated as a motion for summary judgment. Fed.R.Civ.P. 12(c); cf. Bonilla v. Oakland Scavenger Co., 697 F.2d 1297, 1301 (9th Cir.1982) (discussing Fed.R.Civ.P. 12(b)(6)), cert. denied, 467 U.S. 1251, 104 S.Ct. 3533, 82 L.Ed.2d 838 (1984). Here, the district went beyond the pleadings in reaching its decision. The district court relied on the Baerwitz declaration and Hal Roach Studios’s S-l Registration Statement to establish that Hal Roach Studios was the successor in interest to Hal Roach, Inc., an original party to the agreement at issue. Feiner & Co. expressly denied that factual allegation in its answer to Hal Roach Studios’ first amended complaint. Thus, looking solely to the pleadings, Hal Roach Studios must be considered to be a stranger to the license agreement with no legal interest in this action and thus has no substantive rights at issue here. See" } ]

[ { "docid": "2344084", "title": "", "text": "and a conflict first arose between the written terms of the contract and Feiner & Co.’s alleged understanding of the parties’ mutual intent. Thus, Feiner & Co.’s cause of action for reformation based on mutual mistake is barred by the statute of limitations. III. Judgment on the Pleadings The district court granted Hal Roach Studios’ Rule 12(c) motion for judgment on the pleadings on its claim for a declaration that the film licenses would expire on or about September 27,1986. For purposes of the motion, the allegations of the non-moving party must be accepted as true, while the allegations of the moving party which have been denied are assumed to be false. Doleman v. Meiji Mutual Life Ins. Co., 727 F.2d 1480, 1482 (9th Cir.1984); see also Austad v. United States, 386 F.2d 147, 149 (9th Cir.1967). Judgment on the pleadings is proper when the moving party clearly establishes on the face of the pleadings that no material issue of fact remains to be resolved and that it is entitled to judgment as a matter of law. Doleman, 727 F.2d at 1482. However, judgment on the pleadings is improper when the district court goes beyond the pleadings to resolve an issue; such a proceeding must properly be treated as a motion for summary judgment. Fed.R.Civ.P. 12(c); cf. Bonilla v. Oakland Scavenger Co., 697 F.2d 1297, 1301 (9th Cir.1982) (discussing Fed.R.Civ.P. 12(b)(6)), cert. denied, 467 U.S. 1251, 104 S.Ct. 3533, 82 L.Ed.2d 838 (1984). Here, the district went beyond the pleadings in reaching its decision. The district court relied on the Baerwitz declaration and Hal Roach Studios’s S-l Registration Statement to establish that Hal Roach Studios was the successor in interest to Hal Roach, Inc., an original party to the agreement at issue. Feiner & Co. expressly denied that factual allegation in its answer to Hal Roach Studios’ first amended complaint. Thus, looking solely to the pleadings, Hal Roach Studios must be considered to be a stranger to the license agreement with no legal interest in this action and thus has no substantive rights at issue here. See U-Haul International, Inc." }, { "docid": "11374524", "title": "", "text": "to arrest Jason at that time but released him to his father’s custody. During the early morning hours of February 23, 1993, Jason killed Greta while she slept in her bed and later that morning, he committed suicide. II. ANALYSIS: A. Standard of Review. Defendants Washtenaw County, Washtenaw County Sheriff Ronald Schebil, Washtenaw County Deputies Kevin Deacons, Robert Mills, III and William Coggins, move for summary judgment pursuant to Fed.R.Civ.Proc. 12(b)(6) and Fed.R.Civ.Proc. 56(b). Rule 12(b)(6) provides for a motion to dismiss for failure to state a claim upon which relief can be granted. This type of motion tests the legal sufficiency of the plaintiff’s Complaint. Davey v. Tomlinson, 627 F.Supp. 1458, 1463 (E.D.Mich.1986). In evaluating the propriety of dismissal under Rule 12(b)(6), the factual allegations in the Complaint must be treated as true. Janan v. Trammell, 785 F.2d 557, 558 (6th Cir.1986). If matters outside the pleading are presented in a Rule 12(b)(6) motion, the motion shall be treated as one for summary judgment under Rule 56(b) and disposed of as provided in Rule 56. Because matters outside the pleadings have been presented by both parties, the instant motion shall be considered a motion for summary judgment under Rule 56(b). Rule 56(c) provides that summary judgment should be entered only where “the pleadings, depositions, answers to the interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The presence of factual disputes will preclude granting of summary judgment only if the disputes are genuine and concern material facts. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A dispute about a material fact is “genuine” only if “the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Id. Although the Court must view the motion in the light most favorable to the nonmoving party, where “the moving party has carried its burden under Rule 56(c), its opponent must" }, { "docid": "11052392", "title": "", "text": "which relief may be granted.” Miller v. Glanz, 948 F.2d at 1565. i ■ However, Rule 12(b) further expressly provides: If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading 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, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. , In this case, defendant has moved, pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss certain of the plaintiffs claims for failure to state claims upon which relief can be granted. All parties have had, and have utilized, reasonable opportunity to present all materials made pertinent to such motions by Rule 56, and matters outside the pleadings have been presented to and not excluded by the Court. Therefore, the motion to dismiss shall be treated as a motion for summary judgment by the Court. Standard of Review Motions for Summary Judgment Pursuant to Fed.R.Civ.P. 56(c), summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits on file, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law.” The moving party has the burden of showing the absence of a genuine issue concerning any material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The moving party’s burden may be met by identifying those portions of the record demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether these burdens have been met, the court is required to examine all evidence in the light most favorable to the non-moving party. Barber v. General Electric Co., 648 F.2d 1272 (10th Cir.1981). Once the" }, { "docid": "2808434", "title": "", "text": "summarized the basic principles governing the resolution of Rule 12(b)(6) motions: The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint; “importantly, [a Rule 12(b)(6) motion] does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir.1992). Accordingly, a Rule 12(b)(6) motion should only be granted if, after accepting all well-pleaded allegations in the plaintiffs complaint as true and drawing all reasonable factual inferences from those facts in the plaintiffs favor, it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief. See id.... We do note, however’ that for purposes of Rule 12(b)(6), we are not required to accept as true the legal conclusions set forth in a plaintiffs complaint. See District 28, United Mine Workers of Am., Inc. v. Wellmore Coal Corp., 609 F.2d 1083, 1085 (4th Cir.1979). Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir.1999). Where matters outside the pleadings are considered by the court, a defendant’s motion to dismiss will be treated as one for summary judgment under Rule 56. See Fed.R.Civ.P. 12(b). Rule 56(c) of the Federal Rules of Civil Procedure provides that: [Summary judgment] shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A genuine issue of material fact exists if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.1994). In making this determination, the evidence of the party opposing summary judgment is to be believed and all justifiable inferences drawn in her favor. Halperin v. Abacus Tech. Corp., 128 F.3d 191, 196 (4th Cir.1997) (citing Anderson," }, { "docid": "12959426", "title": "", "text": "answer asserting a counterclaim as it has not lost such right by electing to proceed under a clause that is, in that event, essentially, a nullity. 1. Summary Judgment Summary judgment of a claim or defense will be granted when a moving party demonstrates that there are no genuine issues as to any material fact and that a moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a) and (b); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir.1991). The party moving for summary judgment bears the burden of establishing the nonexistence of any genuine issue of material fact. If there is any evidence in the record based upon any source from which a reasonable inference in the non-moving party’s favor may be drawn, a moving party cannot obtain a summary judgment. Celotex, supra, at 322, 106 S.Ct. 2548. Summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... show that there is no issue as to any material fact, and the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson, supra, at 247-48, 106 S.Ct. 2505. “[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the ‘pleadings, depositions, answers to interrogatories, and admissions on file.’ Such a motion, whether or not accompanied by affidavits, will be ‘made and supported as provided in this rule [FRCP 56],’ and Rule 56(e) therefore requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate" }, { "docid": "12698866", "title": "", "text": "in the complaint, docu- merits attached thereto or incorporated therein, and matters of which it may take judicial notice.” Stewart v. Nat’l Educ. Ass’n, 471 F.3d 169, 173 (D.C.Cir.2006); see also Opoka v. INS, 94 F.3d 392, 394 (7th Cir.1996) (“Indeed, it is a well-settled principle that the decision of another court or agency, including the decision of an administrative law judge, is a proper subject of judicial notice.”); Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221, 1222 (D.C.Cir.1993) (“The district court may ... examine matters of public record in ruling on a Rule 12(b)(6) motion....”). However, the Federal Rules of Civil Procedure provide that when, on a motion under Rule 12(b)(6), “matters outside the pleading 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, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” Fed. R.Civ.P. 12(b). Summary judgment is appropriate under Rule 56 when the pleadings and the evidence demonstrate that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party may successfully support its motion by “informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Id. (quoting Fed.R.Civ.P. 56(c)). In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant’s statements as true and accept all evidence and make all inferences in the non-movant’s favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255," }, { "docid": "9351065", "title": "", "text": "to complain about the sexual harassment he had allegedly experienced. (ComplV 50.) Plaintiff thereafter filed this action pro se. STANDARD OF REVIEW Defendant has moved to dismiss or, in the alternative, for summary judgment. Under Rule 12(b)(6), dismissal is appropriate only where a defendant has shown “ ‘beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” In re Swine Flu Immunization Prods. Liab. Litig., 880 F.2d 1439, 1442 (D.C.Cir.1989) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). The allegations in Mr. Carter’s complaint are presumed true for purposes of a 12(b)(6) motion, and all reasonable factual inferences should be construed in his favor. Maljack Prods., Inc. v. Motion Picture Ass’n of Am., Inc., 52 F.3d 373, 375 (D.C.Cir.1995); Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C.Cir.1979). If factual matters outside the pleadings are submitted and considered by the court, however, the motion must be treated as a summary judgment motion under Fed. R.Civ.P. 56. In such cases, the standard changes from determining “whether a claim for relief has been stated” to determining whether there is a “genuine issue of material fact in dispute” and if “the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Under Rule 56, the Court shall grant summary judgment if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute about a material fact is genuine, and should preclude summary judgment, if a reasonable jury could return a verdict in favor of the non-moving party. Id. at 248, 106 S.Ct. 2505. In contrast, a moving party is entitled to summary judgment against “a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on" }, { "docid": "11639573", "title": "", "text": "his handicap. II. Analysis A. Standard for Dismissal Under Rule 12(b)(6) Under the Federal Rules of Civil Procedure, defendants may move to dismiss based on the plaintiffs failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). If matters outside the pleadings are presented to and not excluded by the court, such a motion is to be treated as one for summary judgment and disposed of as provided by Rule 56. Id. In this case, the defendants have attached two affidavits to their motion to dismiss, and the plaintiff has attached a copy of the housing discrimination complaint he filed with the Department of Housing and Urban Development to his brief in opposition to the defendants’ motion to dismiss. These matters outside the pleadings have not been excluded by the court. In addition, both parties have requested that the defendants’ motion be treated as one for summary judgment. Accordingly, the defendants’ motion to dismiss will be analyzed under the summary judgment standard. B. Summary Judgment Standard Rule 56(c) 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 of material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.CivP. 56(c). The party seeking summary judgment bears the initial burden of informing the court of the basis for his motion and identifying those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, which he believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., ATI U.S. 242,248,106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Williams v. Adams, 836 F.2d 958, 960 (5th Cir.1988). Once a proper motion has been made, the non-moving party may not rest upon mere allegations or denials in the pleadings, but must set forth specific facts showing the existence of a genuine issue for trial. Celotex Corp.," }, { "docid": "16056069", "title": "", "text": "the purposes of summary judgment or trial. Therefore, the Court holds that all of the Rule 23(b)(3) factors support the determination that a class action is superior to other available methods of adjudication. In sum, the Court concludes that Plaintiffs have satisfied the four requirements of Rule 23(a), demonstrated that common issues of law and fact predominate, and have shown that a class action is the superior method of adjudicating these controversies. Therefore, class certification is appropriate. VI. DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS Defendants have also filed a motion for judgment on the pleadings on Plaintiffs’ second cause of action for attempted monopolization in violation of 15 U.S.C. § 2. A. Legal Standard Governing a Rule 12(c) Motion for Judgment on the Pleadings Federal Rule 12(c) provides that “[ajfter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings.” Fed. R.Civ.P. 12(c). “Judgment on the pleadings is proper when the moving party clearly establishes on the face of the pleadings that no material issue of fact remains to be resolved and that it is entitled to judgment as a matter of law.” Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir.1990). “The standard on a motion for judgment on the pleadings is the same as that applied on a motion pursuant to Fed.R.Civ.P. 12(b)(6).” Martinez v. Snow, 2006 WL 3654618, at *3 (E.D.Cal. Dec.12, 2006). Where the argument is that Plaintiff fails to state a claim, “the motion for judgment on the pleadings faces the same test as a motion under Rule 12(b)(6).” McGlinchy v. Shell Chemical Co., 845 F.2d 802, 810 (9th Cir.1988). The complaint should be construed in Plaintiffs favor for purposes of a 12(c) motion. Martinez, 2006 WL 3654618, at *3. Since Plaintiffs are the non-moving party, the allegations of the complaint “must be accepted as true.” Hal Roach, 896 F.2d at 1550. Generally speaking, “judgment on the pleadings is improper when the district court goes beyond the pleadings to resolve an issue; such a" }, { "docid": "19244787", "title": "", "text": "To the extent, however, that “matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment.” Fed.R.Civ.P. 12(b); Del Monte Dunes at Monterey, Ltd. v. Monterey, 920 F.2d 1496, 1507 (9th Cir.1990). III. Motion for Judgment on the Pleadings Rule 12(e) of the Federal Rules of Civil Procedure provides in part as follows: After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, 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,.... The dismissal on the pleadings is proper only if the moving party is clearly entitled to prevail. Doleman v. Meiji Mutual Life Insurance Co., 727 F.2d 1480, 1482 (9th Cir.1984). All allegations of fact of the opposing party are accepted as true. Id. Generally, the court is unwilling to grant dismissal pursuant to Rule 12(e) “unless the movant clearly establishes that he is entitled to judgment as a matter of law.” Id. (quoting 5A Wright & Miller, Federal Practice and Procedure: Civil § 1368). To the extent, however, that “matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment.” Fed.R.Civ.P. 12(c). IV. Motion for Summary Judgment Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). The moving party has the initial burden of “identifying for the court those portions of the materials on file in the case that it believes demonstrate the absence of any genuine issue of material fact.” T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)). If the moving party" }, { "docid": "2877376", "title": "", "text": "APPLICABLE LEGAL STANDARDS A. Legal Standard Governing Motions for Summary Judgment Under Fed.R.Civ.P. 56, summary judgment is warranted if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In determining whether a genuine issue of material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. However, when the moving party has met its initial burden of establishing the absence of any genuine issue of material fact, the nonmoving party must come forward with “specific facts showing that there is a genuine issue for trial.” The nonmoving party must do more than “rest upon the mere allegations ... of the [plaintiffs] pleading” or “simply show that there is some metaphysical doubt as to the material facts.” Rather, “[a] dispute regarding a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” What this burden-shifting standard means when a plaintiff has failed to respond to a defendant’s motion for summary judgment is that “[t]he fact that there has been no [such] response ... does not ... [by itself] mean that the motion is to be granted automatically.” Rather, practically speaking, the Court must (1) determine what material facts, if any, are disputed in the record presented on the defendants’ motion, and (2) assure itself that, based on those undisputed material facts, the law indeed warrants judgment for the defendants. However, the plaintiffs failure to respond to the defendant’s motion for summary judgment lightens the defendant’s burden on the motion. More specifically, where a plaintiff has failed to properly respond to a defendant’s statement of material facts, contained in its Statement of Material Facts (a/k/a its “Rule 7.1 Statement”), the facts as set forth in that Rule 7.1 Statement will be accepted as true to the extent that (1) those facts are supported by the evidence in the" }, { "docid": "23423795", "title": "", "text": "56(c), a motion for summary judgment shall be granted if there is no genuine issue of material fact, and the moving party is entitled to judgment as matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In considering a motion for summary judgment, the “evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255, 106 S.Ct. 2505; see also Wash. Post. Co. v. United States Dep’t of Health and Human Servs., 865 F.2d 320, 325 (D.C.Cir.1989). The moving party “bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In response, the opposing party must “go beyond the pleadings and by [its] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Id. at 324, 106 S.Ct. 2548 (internal quotation marks omitted). Defendants have moved for judgment on the pleadings. Under Fed.R.Civ.P. 12(c), a motion for judgment on the pleadings may be granted if the moving party demonstrates that “no material fact is in dispute and that it is entitled to judgment as a matter of law.” Peters v. Nat’l R.R. Passenger Corp., 966 F.2d 1483, 1485 (D.C.Cir.1992) (internal quotation marks and citations omitted). “The standard for reviewing a motion for judgment on the pleadings is the same as that applied to a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6).” National Ass’n of Mfrs. v. Taylor, 549 F.Supp.2d 33, 47, 2008 WL 1390606, at * 10 (D.D.C. Apr.ll, 2008) (citing Dale v. Exec. Office of President, 164 F.Supp.2d 22, 24 (D.D.C.2001)). To defeat a motion to dismiss" }, { "docid": "18222797", "title": "", "text": "(EEO) counselor on January 15, 2004, more than six months after her firing, -in order to file a complaint. STANDARD OF REVIEW Defendant has filed a motion to dismiss for failure to state a claim and relies on declarations, as does plaintiff. “When matters outside the pleading 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, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” Fed.R.Civ.P. 12(b); see Yates v. District of Columbia, 324 F.3d 724, 725 (D.C.Cir.2003). The Court has considered declarations outside of the pleadings and thus treats the motion as one for summary judgment. Both parties were given a reasonable opportunity to submit materials outside the pleadings, as evidenced by the submission of declarations from both sides. Further, an opportunity was afforded to each party to respond to the other’s submissions. Therefore, a conversion of the Rule 12(b)(6) motion to one for summary judgment is appropriate. Summary judgment is appropriate when the pleadings and the evidence demonstrate that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party may successfully support its motion by “informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ‘which it believes demonstrate the absence of a genuine issue of material fact.’ ” Id. (quoting Fed.R.Civ.P. 56(c)). In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant’s statements as true and accept all evidence and make all inferences in the non-movant’s favor. See Anderson" }, { "docid": "23291948", "title": "", "text": "is presented in this case. A motion to dismiss for failure to state a claim upon which relief can be granted must be treated as a motion for summary judgment if matters outside the pleadings are considered. If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading 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, and all parties shall be given reasonable opportunity to present all material made pertinent to such motion by Rule 56. Fed.R.Civ.P. 12(b). The motion, considered as one for summary judgment under Fed.R.Civ.P. 56, should be granted only “if the pleadings, depositions, an swers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” A motion for summary judgment, as distinguished from a motion to dismiss for failure to state a claim, seeks to “pierce the allegations in the pleadings,” 10 C. Wright & A. Miller, Federal Practice and Procedure § 2712 at 373 (1973); it goes beyond the pleadings and challenges the factual existence of a valid claim. Summary judgment should be granted only when it is clear factually what the truth of the matter is. Poller v. Columbia Broadcasting System, 1962, 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458. The facts may become clear when, for example, the parties stipulate them, or when the moving party files an affidavit setting forth certain facts, and the non-moving party is unable to produce any controverting affidavit or evidence. Fed.R.Civ.P. 56(e). In this ease the parties have hardly begun to develop the facts. The record contains no affidavits, depositions, or admissions. Beyond the factual representations in the complaint, answers to interrogatories by each party are the only indications of the facts. Plaintiff’s interrogatories were directed solely toward discovery" }, { "docid": "20411277", "title": "", "text": "Hall v. Sebelius, 689 F.Supp.2d 10, 21-22 (D.D.C.2009) (same). Hence, the Court will not treat defendant’s motion as brought under Rule 12(b)(1). Defendant also moves to dismiss plaintiffs amended complaint pursuant to Rule 12(b)(6) for failure to state a claim. However, defendant has already filed an answer and engaged in discovery. Moreover, numerous exhibits are attached to the motion papers. When “matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56” and “[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed.R.Civ.P. 12(d). Hence, the Court will treat defendant’s motion as brought under Rule 56. Summary judgment is appropriate when the pleadings and the evidence demonstrate that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party may successfully support its motion by identifying those portions of “the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of motion only), admissions, interrogatory answers, or other materials,” which it believes demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c)(1); see Celotex, 477 U.S. at 323, 106 S.Ct. 2548. In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant’s statements as true and accept all evidence and make all inferences in the non-movant’s favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A non-moving party, however, must establish more than the “mere existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505. By pointing to the absence of evidence proffered by the non-moving party, a" }, { "docid": "18020985", "title": "", "text": "pleadings. LEGAL STANDARD A party can move for judgment based on the pleadings alone. N. Ind. Gun & Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449, 452 (7th Cir.1998). Rule 12(c) provides the standard to be applied on a motion for judgment on the pleadings: After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, 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, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. Fed.R.Civ.P. 12(c). In this case, the parties have not presented material outside of the pleadings. Therefore, this motion for judgment on the pleadings is subject to the same standards as a Rule 12(b)(6) motion to dismiss: all well-pleaded facts are taken as true, all inferences are drawn in favor of the nonmovant and all ambiguities are resolved in favor of the nonmovant. Alexan der v. City of Chicago, 994 F.2d 333, 335 (7th Cir.1993). Thus, a “motion for judgment on the pleadings may be granted only if the moving party clearly establishes that no material issue of fact remains to be resolved and that he or she is entitled to judgment as a matter of law.” Nat’l Fid. Life Ins. Co. v. Karaganis, 811 F.2d 357, 358 (7th Cir.1987), ANALYSIS 1. Choice of Law As a preliminary matter, we must resolve a conflict of laws. W. Am. Ins. Co. v. Moonlight Design, Inc., 95 F,Supp.2d 838, 841 (N.D.Ill.2000). Federal courts sitting in diversity consider conflict of law issues when the parties disagree on which state’s law applies, Mass. Bay Ins. Co. v. Vic Koenig Leasing, Inc., 136 F.3d 1116, 1120 (7th Cir.1998), and where state law differences affect the outcome of the case, Centennial Ins. Co. v. Transitan Servs. Inc., 2001 WL 289879, at *2 n. 1" }, { "docid": "72344", "title": "", "text": "a party may move for judgment on the pleadings after the pleadings are closed. Fed.R.Civ.P. 12(c). Rule 12(h) states that “[a] defense of failure to state a claim upon which relief can be granted, [and] a defense of failure to join a party indispensable under Rule 19, ... may be made ... by motion for judgment on the pleadings .... ” Fed.R.Civ.P. 12(h). A court shall grant a motion for judgment on the pleadings “only where, construing the complaint in the light most favorable to the plaintiff, and accepting all of its factual allegations as true, the plaintiff can prove no set of facts in support of the claim that would entitle him to relief.” Smith v. City of Salem, 378 F.3d 566, 570 (6th Cir.2004) (citation omitted). B. Standard of Review — Summary Judgment Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Rule 56 is made applicable in this adversary proceeding by Fed. R. Bankr.P. 7056. On motion for summary judgment, the inferences drawn, from the underlying facts must be viewed in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Anthony v. BTR Auto. Sealing Sys., Inc., 339 F.3d 506, 511 (6th Cir.2003); McKenzie v. BellSouth Telecomms., Inc., 219 F.3d 508, 512 (6th Cir.2000). The moving party has the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Leary v. Daeschner, 349 F.3d 888, 897 (6th Cir.2003); Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.1989). Once the moving party satisfies its burden, the non-moving party must set forth specific facts showing that there is a genuine issue for trial. Matsushita, 475 U.S. at 587," }, { "docid": "11396640", "title": "", "text": "1995, MetLife notified Plaintiff that there was no basis to modify its decision. Plaintiff filed the instant Complaint on January 24, 1996. The parties have now filed cross-motions for summary judgment. II. ANALYSIS: A.Standard of Review. Rule 12(b)(6) provides for a motion to dismiss for failure to state a claim upon which relief can be granted. This type of motion tests the legal sufficiency of the plaintiffs Complaint. Davey v. Tomlinson, 627 F.Supp. 1458, 1463 (E.D.Mich.1986). In evaluating the propriety of dismissal under Rule 12(b)(6), the factual allegations in the Complaint must be treated as true. Janan v. Trammell, 785 F.2d 557, 558 (6th Cir.1986). If matters outside the pleading are presented in a Rule 12(b)(6) motion, the motion shall be treated as one for summary judgment under Rule 56(b) and disposed of as provided in Rule 56. Rule 56(c) provides that summary judgment should be entered only where “the pleadings, depositions, answers to the interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The presence of tactual disputes will preclude granting of summary judgment only if the disputes are genuine and concern material facts. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A dispute about a material fact is “genuine” only if “the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Id. Although the Court must view the motion in the light most favorable to the nonmoving party, where “the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Summary judgment must be entered against a party who fails to" }, { "docid": "4351658", "title": "", "text": "the moving party cannot obtain a summary judgment. Catrett, supra, at 331, 106 S.Ct. 2548. Summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... show that there is no issue as to any material fact, and the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson, supra, at 247-48, 106 S.Ct. 2505. Whether a fact is material depends on the substantive law of the claim and “[ojnly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. at 248,106 S.Ct. 2505. [Wjhere the nonmoving party will bear the burden of proof at trial on a disposi-tive issue, a summary judgment motion may properly be made in reliance solely on the ‘pleadings, depositions, answers to interrogatories, and admissions on file.’ Such a motion, whether or not accompanied by affidavits, will be ‘made and supported as provided in this rule [Fed.R.Civ.P. 56],’ and Rule 56(e) therefore requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ Catrett, supra, at 324, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 56). Thus, “as to issues on which the non-moving party bears the burden of proof, the moving party may simply point out the absence of evidence to support the non-moving party’s case.” Nora Beverages, Inc. v. Perrier Group of America, Inc., 164 F.3d 736, 742 (2d Cir.1998). Once a party moving for summary judgment has made a properly supported showing as to the absence of any genuine issue as to all material facts, the nonmov-ing party must, to defeat summary judgment, come forward with evidence that would be sufficient to support a jury verdict" }, { "docid": "16954063", "title": "", "text": "state a claim upon which relief can be granted,” a district court must accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmov-ing party. Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir.1999). The Court “may dismiss the complaint only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Id. (internal quotations omitted)(citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). If, on a motion to dismiss, “matters outside the pleading 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, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” Fed. R. Civ. P. 12(c). The standard for granting summary judgment is also well established. Summary judgment may not be granted unless “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.CivP. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). “[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied.” IT Moore’s FedeRal PRACTICE, § 56.11[l][a] (Matthew Bender 3d ed.). Once that burden has been established, the burden then shifts to the non-moving party to demonstrate “specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To carry this burden, the non-moving party must present evidence sufficient to support a jury verdict in its favor. Id. at 249, 106 S.Ct." } ]

[ { "docid": "22338072", "title": "", "text": "summary judgment with respect to some of respondents’ defenses. A Magistrate Judge recommended that the District Court dismiss the ease without prejudice because Wright had failed to pursue the grievance procedure provided by the CBA. The District Court adopted the report and recommendation and subsequently rejected Wright’s motion for reconsideration. The United States Court of Appeals for the Fourth Circuit affirmed, see No. 96-2850 (July 29, 1997), judgt. order reported at 121 F. 3d 702, relying upon its earlier decision in Austin v. Owens-Brockway Glass Container, Inc., 78 F. 3d 875, cert. denied, 519 U. S. 980 (1996), which in turn had relied upon our decision in Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20 (1991). We granted certiorari, 522 U. S. 1146 (1998). In this ease, the Fourth Circuit concluded that the general arbitration provision in the CBA governing Wright’s employment was sufficiently broad to encompass a statutory claim arising under the ADA, and that such a provision was enforceable. The latter conclusion brings into question two lines of our case law. The first is represented by Alexander v. Gardner-Denver Co., 415 U. S. 36 (1974), which held that an employee does not forfeit his right to a judicial forum for claimed discriminatory discharge in violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. § 2000e et seq., if “he first pursues his grievance to final arbitration under the nondiscrimination clause of a collective-bargaining agreement.” 415 U. S., at 49. In rejecting the argument that the doctrine of election of remedies barred the Title VII lawsuit, we reasoned that a grievance is designed to vindicate a “contractual right” under a CBA, while a lawsuit under Title VII asserts “independent statutory rights accorded by Congress.” Id., at 49-50. The statutory cause of action was not waived by the union’s agreement to the arbitration provision of the CBA, since “there can be no prospective waiver of an employee’s rights under Title VII.” Id., at 51. We have followed the holding of Gardner-Denver in deciding the effect of CBA arbitration" } ]

[ { "docid": "13755568", "title": "", "text": "to appeal a judgment or order, in whole or in part, when the order disposing of the last such remaining motion is entered. Fed. R.App. P. 4(a)(4)(B)(i) (1998). The newer rule eliminates the prior rule’s procedural “trap for an unsuspecting litigant who files a notice of appeal before a post-trial motion or while a posttrial motion is pending.” Fed. R.App. P. 4, Advisory Committee Notes (1993). UIA’s notice'of appeal therefore properly invokes our jurisdiction, notwithstanding the EEOC’s later motion under Rule 59. The EEOC also suggests that we lack appellate jurisdiction because the district court’s October 10, 2000, judgment designated in UIA’s notice of appeal does not reflect the finding of liability in the district court’s September 26, 2000, opinion and order. This argument is without merit. We have “uniformly held that a notice of appeal that designates the final judgment encompasses not only that judgment, but also all earlier interlocutory orders that merge in the judgment.” See John’s Insulation, Inc. v. L. Addison & Assocs., 156 F.3d 101, 105 (1st Cir.1998). The October 10 order was accompanied by a docket entry ordering the case closed; this entry of judgment clearly disposed of the. entire case. See generally Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945) (stating that an ap-pealable final decision generally is one which “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment”). UIA’s appeal from the district court’s ruling of October 10, 2000, therefore supports review of the earlier orders. B. Title VII Having dispensed with the EEOC’s jurisdictional arguments, we now turn to UIA’s argument that the district court erred in granting summary judgment in favor of the EEOC on the issue of liability under Title VII. Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Barbour v. Dynamics Research Corp., 63" }, { "docid": "13755576", "title": "", "text": "Simas v. First Citizens’ Fed. Credit Union, 170 F.3d 37, 49 (1st Cir.1999); see also 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2726, at 446 (3d ed. 1998) (“Clearly, if the credibility of the movant’s witnesses is challenged by the opposing party and specific bases for possible impeachment are shown, summary judgment should be denied and the case allowed to proceed to trial”) (footnote omitted). In this case, UIA has by no means conceded that Cruz’s opposition to union membership was the product of a sincerely held belief. Instead, it has adduced specific undisputed evidence of conduct on Cruz’s part that is contrary to the tenets of his professed religious belief. For example, there is record evidence that Cruz lied on an employment application; that he is divorced; that he took an oath before a notary upon becoming a public employee; and that he works five days a week (instead of the six days required by his faith). Evidence tending to show that an employee acted in a manner inconsistent with his professed religious belief is, of course, relevant to the factfinder’s evaluation of sincerity. See Philbrook v. Ansonia Bd. of Ed., 757 F.2d 476, 482 (2d Cir.1985), aff'd on other grounds, 479 U.S. 60, 107 S.Ct. 367, 93 L.Ed.2d 305 (1986). UIA also points to disputed evidence that, when viewed in the light most favorable to UIA, shows that the alleged conflict between Cruz’s beliefs and union membership was a moving target: at first, Cruz objected only to certain membership requirements, and he only voiced his opposition to any form of union membership after UIA agreed to accommodate him with respect to each practice he had identified earlier. Such evidence, if credited by the factfinder, could also bear on the sincerity of Cruz’s beliefs. We therefore conclude that UIA raised a triable issue of fact, making summary judgment inappropriate. To be sure, assessing the bona fides of an employee’s religious belief is a delicate business. On the one hand, the defendant is entitled to hold the plaintiff to his burden," }, { "docid": "18306676", "title": "", "text": "6 P.3d at 679 n. 6 (“Nothing in this opinion, however, should be interpreted as implying that an arbitration agreement can restrict an employee’s resort to the Department of Fair Employment and Housing, the administrative agency charged with prosecuting complaints made under the FEHA. ... ”) (citing Gilmer, 500 U.S. at 28, 111 S.Ct. 1647). Presumably, the DRP specifically excludes such administrative complaints because of these cases. O’Melveny also acknowledges that the clause does not bar the EEOC or a similar state agency from seeking relief (in court) that is not individual-specific, such as a class action. The clause also could not bar an EEOC-instituted judicial action that might also seek victim-specific relief. See EEOC v. Waffle House, Inc., 534 U.S. 279, 295-96, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002). Therefore, under Gil-mer and Armendariz, a clause that barred or required arbitration of administrative claims to the EEOC would be void as against public policy. The exception (i.e., preclusion from arbitration) for administrative complaints to the EEOC and California DFEH was premised on the agencies’ public purpose for the relief and their independent authority to vindicate public rights. Gilmer, 500 U.S. at 27, 111 S.Ct. 1647; Waffle House, 534 U.S. at 291-92, 294-96, 122 S.Ct. 754. Indeed, the EEOC’s enforcement scheme relies upon individual complaints. “Consequently, courts have observed that an individual may not contract away her right to file a charge with the EEOC[.]” EEOC v. Frank’s Nursery & Crafts, Inc., 177 F.3d 448, 456 (6th Cir.1999) (citations omitted); cf. Waffle House, 534 U.S. at 296 n. 11, 122 S.Ct. 754 (“We have generally been reluctant to approve rules that may jeopardize the EEOC’s ability to investigate and select cases from a broad sample of claims.”). So it is with the Department of Labor and FLSA complaints — such complaints may not be waived with an arbitration clause because the statutory scheme is premised on an employee’s willingness to come forward, in support of the public good. See Mitchell v. Robert De Mario Jewelry, Inc., 361 U.S. 288, 292, 80 S.Ct. 332, 4 L.Ed.2d 323 (1960) (“Congress did not" }, { "docid": "13755562", "title": "", "text": "Adventist college. Defendant Unión Independiente de la Autoridad de Acueductos y Alcantarillados (“UIA” or “Union”) is a labor organization created in accordance with the Puerto Rico Labor Relations Act, 29 L.P.R.A. §§ 61-76. UIA represents several categories of employees, including operations and maintenance workers of AAA. UIA maintained a Collective Bargaining Agreement (CBA) with AAA that contains a union security clause, pursuant to which all permanent employees of the appropriate bargaining unit must belong to the Union. On December 6, 1988, Cruz became a permanent employee of AAA. He was given written notification of the conditions under which he would be employed, includ ing his obligation to join UIA and pay union dues. According to UIA, Cruz did not state his objection to union membership outright at that time. Instead, he objected only to specific union practices, each of which UIA contends it was willing to accommodate. For example, Cruz objected at various points to attending Saturday union meetings, joining union demonstrations or strikes, taking the Union’s loyalty oath, and paying union dues. Through a series of correspondence, meetings, and administrative procedures, UIA expressed its willingness to exempt Cruz from Saturday meetings and public strikes or picketing, to paraphrase its loyalty oath to an affirmation, and to transfer his dues to a nonprofit organization (but retain the share used to pay his fringe benefits). Only after Cruz rejected these proposals, contends UIA, did he assert his objection to union membership in any form. Cruz disputes this version of events and maintains that his opposition to union membership was steadfast and unqualified. On March 27, 1991, the Board of Directors of UIA initiated disciplinary proceedings against Cruz for his refusal to become a UIA member. At the end of these proceedings, UIA requested that AAA suspend Cruz from employment in accordance with the union security clause. Cruz appealed the resolution to the Executive Central Committee of UIA, which affirmed the proposed disciplinary measures. Cruz avers that throughout the course of these proceedings he was declared “persona non grata” by the UIA. In July 1992, Cruz filed a grievance with the Grievance" }, { "docid": "13755567", "title": "", "text": "filed its notice after the EEOC filed its Rule 59 motion, but before the district court acted upon it. Stating “it is not clear” that we have jurisdiction over this appeal under these circumstances, the EEOC seems to intimate that UIA’s notice was nullified by the EEOC’s subsequent filing of a Rule 59 motion. This argument is simply anachronistic, invoking a rule followed under the pre-1993 version of the Federal Rules of Appellate Procedure. See Fed. R.App. P. 4(a)(4) (1988) (super seded) (“A notice of appeal filed before the disposition of [a motion under Rule 59] shall have no effect”); Osterneck v. Ernst & Whinney, 489 U.S. 169, 1,77, 109 S.Ct. 987, 103 L.Ed.2d 146 (1989) (holding that notice of appeal filed during pendency of Rule 59 motion was ineffective to confer appellate jurisdiction). Under the version of Rule 4 currently in effect, [i]f a party files a notice of appeal after the court announces or enters a judgment — but before it disposes of [a motion under Rule 59] — the notice becomes effective to appeal a judgment or order, in whole or in part, when the order disposing of the last such remaining motion is entered. Fed. R.App. P. 4(a)(4)(B)(i) (1998). The newer rule eliminates the prior rule’s procedural “trap for an unsuspecting litigant who files a notice of appeal before a post-trial motion or while a posttrial motion is pending.” Fed. R.App. P. 4, Advisory Committee Notes (1993). UIA’s notice'of appeal therefore properly invokes our jurisdiction, notwithstanding the EEOC’s later motion under Rule 59. The EEOC also suggests that we lack appellate jurisdiction because the district court’s October 10, 2000, judgment designated in UIA’s notice of appeal does not reflect the finding of liability in the district court’s September 26, 2000, opinion and order. This argument is without merit. We have “uniformly held that a notice of appeal that designates the final judgment encompasses not only that judgment, but also all earlier interlocutory orders that merge in the judgment.” See John’s Insulation, Inc. v. L. Addison & Assocs., 156 F.3d 101, 105 (1st Cir.1998). The October 10" }, { "docid": "13755566", "title": "", "text": "judgment “for injunctive relief in addition to the back pay previously awarded.” On October 24, while the EEOC’s motion was still pending, UIA filed its notice of appeal from the October 10 judgment. On November 14, 2000, the district court entered an order agreeing with the EEOC that injunctive relief should be- added to the damages award previously ordered. The court entered an “Amended Judgment Nunc pro Tunc,” ordering Cruz’s -reinstatement in his former or equivalent position and an injunction forbidding UIA from discriminating on the basis of religion or retaliating against any employee for filing a charge on the basis of religion. UIA did not file a separate notice of appeal following the entry of the amended judgment. II. ANALYSIS A. Jurisdictional issues The EEOC attempts to short-circuit UIA’s appeal from the outset by pressing two challenges to our jurisdiction. Though we find neither challenge persuasive, we briefly address these threshold issues before moving to the merits of the appeal. The EEOC first draws our attention to timing of UIA’s notice of appeal. UIA filed its notice after the EEOC filed its Rule 59 motion, but before the district court acted upon it. Stating “it is not clear” that we have jurisdiction over this appeal under these circumstances, the EEOC seems to intimate that UIA’s notice was nullified by the EEOC’s subsequent filing of a Rule 59 motion. This argument is simply anachronistic, invoking a rule followed under the pre-1993 version of the Federal Rules of Appellate Procedure. See Fed. R.App. P. 4(a)(4) (1988) (super seded) (“A notice of appeal filed before the disposition of [a motion under Rule 59] shall have no effect”); Osterneck v. Ernst & Whinney, 489 U.S. 169, 1,77, 109 S.Ct. 987, 103 L.Ed.2d 146 (1989) (holding that notice of appeal filed during pendency of Rule 59 motion was ineffective to confer appellate jurisdiction). Under the version of Rule 4 currently in effect, [i]f a party files a notice of appeal after the court announces or enters a judgment — but before it disposes of [a motion under Rule 59] — the notice becomes effective" }, { "docid": "13755561", "title": "", "text": "TORRUELLA, Circuit Judge. The appellant, a labor organization, challenges the district court’s entry of summary judgment in favor of the Equal Employment Opportunity Commission (“EEOC”) on a claim of religious discrimination. Because we conclude that the record evidence reveals a disputed issue of fact with respect to an element of the EEOC’s prima facie case, we reverse. I. BACKGROUND In accordance with ordinary summary judgment protocol, we recite only the undisputed facts, unless otherwise noted. A. Events leading to the claim of discrimination David Cruz-Carrillo (“Cruz”) is a member of the Seventh-Day Adventist Church who claims that the tenets of his religion prohibit him from joining a labor organization. Cruz was hired by the Autoridad de Acueductos y Alcantarillados of the Commonwealth of Puerto Rico (“AAA”) as a temporary employee in 1986. When he applied for employment with AAA, he never disclosed that his religious beliefs forbid him from becoming a member of a labor organization. However, his application for employment at AAA reveals that Cruz attended Seventh-Day Adventist schools and graduated from a Seventh-Day Adventist college. Defendant Unión Independiente de la Autoridad de Acueductos y Alcantarillados (“UIA” or “Union”) is a labor organization created in accordance with the Puerto Rico Labor Relations Act, 29 L.P.R.A. §§ 61-76. UIA represents several categories of employees, including operations and maintenance workers of AAA. UIA maintained a Collective Bargaining Agreement (CBA) with AAA that contains a union security clause, pursuant to which all permanent employees of the appropriate bargaining unit must belong to the Union. On December 6, 1988, Cruz became a permanent employee of AAA. He was given written notification of the conditions under which he would be employed, includ ing his obligation to join UIA and pay union dues. According to UIA, Cruz did not state his objection to union membership outright at that time. Instead, he objected only to specific union practices, each of which UIA contends it was willing to accommodate. For example, Cruz objected at various points to attending Saturday union meetings, joining union demonstrations or strikes, taking the Union’s loyalty oath, and paying union dues. Through a" }, { "docid": "13755573", "title": "", "text": "belief,” an element of the claim for which the EEOC bears the burden of proof. In support of this argument UIA points to record evidence tending to show that Cruz has, on more than a few occasions, taken actions that are at odds with his professed faith. The requirement that the employee have a “bona fide religious belief’ is an essential element of a religious accommodation claim. Title VII does not mandate an employer or labor organization to accommodate what amounts to a “purely personal preference.” Vetter v. Farmland Indus., Inc., 120 F.3d 749, 751 (8th Cir.1997). In order to satisfy this element, the plaintiff must demonstrate both that the belief or practice is religious and that it is sincerely held. See Redmond v. GAF Corp., 574 F.2d 897, 901 n. 12 (7th Cir.1978); cf. also Hager v. Sec. of Air Force, 938 F.2d 1449, 1454 (1st Cir.1991) (noting similar test for determining whether an applicant is entitled to an exemption from military service as a conscientious objector). As noted above, Title VII’s capacious definition of “religion” includes “all aspects of religious observance and practice, as well as belief_” 42 U.S.C. § 2000e(j); see also 29 C.F.R. § 1605.1 (“[R]eligious practices ... include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.”). Religious beliefs protected by Title VII need not be “acceptable, logical, consistent, or comprehensible to others.... ” Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 714, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981). The statute thus leaves little room for a party to challenge the religious nature of an employee’s professed beliefs. Plus, in this case, the religious foundation of the Seventh-Day Adventist faith’s opposition to union membership has long been recognized in the opinions of this court and those of our sister circuits. See Linscott v. Millers Falls Co., 440 F.2d 14, 15-16 (1st Cir.1971); see also McDaniel v. Essex Int’l, Inc., 696 F.2d 34, 37 (6th Cir.1982); Tooley v. Martin-Marietta Corp., 648 F.2d 1239, 1241 (9th Cir.1981); Nottelson v." }, { "docid": "13755578", "title": "", "text": "making it “entirely appropriate, indeed necessary, for a court to engage in analysis of the sincerity of someone’s religious beliefs.... ” Protos v. Volkswagen of Am., Inc., 797 F.2d 129, 137 (3d Cir.1986) (quoting Philbrook, 757 F.2d at 481). On the other hand, “[sjincerity analysis is exceedingly amorphous, requiring the factfinder to delve into the [employee’s] most veiled motivations and vigilantly separate the issue of sincerity from the factfinder’s perception of the religious nature of the [employee’s] beliefs.” Patrick v. LeFevre, 745 F.2d 153, 157 (2d Cir.1984). Thus, at trial the court must be careful in separating the verity and sincerity of an employee’s beliefs in order to prevent the verdict from turning on “the factfinder’s own idea of what a religion should resemble.” Philbrook, 757 F.2d at 482 (quoting L. Tribe, American Constitutional Law § 14-11, at 861 (1979)). We believe that a jury, acting under proper instructions from the trial judge, is fully capable of evaluating the parties’ evidence and making the appropriate factual determination. III. CONCLUSION Because we conclude that the district court erroneously granted summary judgment with regard to the element of a bona fide religious belief, we decline to address UIA’s remaining arguments on appeal and express no view as to their merits. Reversed. . Since the UIA represents government employees, its dealings with AAA are not governed by the National Labor Relations Act, 29 U.S.C. §§ 151-169. . UIA has not argued that Cruz's resort to the employee grievance procedure precludes the instant lawsuit. Cf. Wright v. Universal Maritime Serv. Corp., 525 U.S. 70, 119 S.Ct. 391, 142 L.Ed.2d 361 (1999) (holding that general arbitration clause in a collective bargaining agreement did not require employee to use arbitration procedure for alleged violation of federal antidiscrimination law); EEOC v. Waffle House, Inc., - U.S. -, 122 S.Ct. 754, 762-66,-L.Ed.2d-(2002) (holding that employee's arbitration agreement does not prevent EEOC from initiating suit against the employer and seeking victim-specific relief). . The collective bargaining agreement between UIA and AAA contained a provision mandating that UIA will indemnify AAA for any liability the employer may incur due to" }, { "docid": "13755580", "title": "", "text": "the enforcement of the union security clause. This appeal does not require us to pass on the sticky question of whether such agreements are enforceable as a matter of public policy. Compare Stamford Bd. of Ed. v. Stamford Ed. Ass’n, 697 F.2d 70, 72-75 (2d Cir.1982) (holding that indemnification clauses in collective bargaining agreements which purport to relieve public employers from liability for violations of federal constitutional and civil rights are void as against public policy), and Weaver v. Univ. of Cincinnati, 970 F.2d 1523, 1536-38 (6th Cir.1992) (same), with Hohe v. Casey, 956 F.2d 399, 411-12 (3d Cir.1992) (upholding indemnity agreement providing that union would hold public employer harmless on any and all claims, suits, orders, or judgments against employer as a result of action taken with respect to union security clause). . ÚIA argued that it was entitled to summary judgment on the grounds that it had indisputably made a reasonable accommodation for each of Cruz’s objections to certain membership requirements, that Cruz's proposed accommodation of an exemption from membership was unreasonable and an undue burden, and that the religious accommodation provisions of Title VII violate the First Amendment’s Establishment Clause. UIA has also pressed these arguments in this appeal. . We do not, however, have jurisdiction to entertain any challenges to the district court's modification of the judgment in response to the EEOC’s Rule 59 motion. See Fed. R.App. P. 4(a)(4)(B)(ii) (requiring party to amend notice of appeal in order to challenge orders disposing of motions under Rule 59). No such challenge appears to be asserted by UIA. . Evidently, this was also the EEOC's understanding, since it filed its Rule 59 motion in response to the court’s October 10, 2000, order. See Fed.R.Civ.P. 59(e) (providing for motions to alter or amend a judgment). . Read literally, Title VII addresses only the obligation of an \"employer” to accommodate an employee's religious beliefs and observances. However, courts have uniformly imposed upon labor organizations the same duly to provide reasonable accommodations. See, e.g., Lutcherv. Musicians Union Local 47, 633 F.2d 880, 884 (9th Cir.1981). We follow the same approach" }, { "docid": "13755581", "title": "", "text": "an undue burden, and that the religious accommodation provisions of Title VII violate the First Amendment’s Establishment Clause. UIA has also pressed these arguments in this appeal. . We do not, however, have jurisdiction to entertain any challenges to the district court's modification of the judgment in response to the EEOC’s Rule 59 motion. See Fed. R.App. P. 4(a)(4)(B)(ii) (requiring party to amend notice of appeal in order to challenge orders disposing of motions under Rule 59). No such challenge appears to be asserted by UIA. . Evidently, this was also the EEOC's understanding, since it filed its Rule 59 motion in response to the court’s October 10, 2000, order. See Fed.R.Civ.P. 59(e) (providing for motions to alter or amend a judgment). . Read literally, Title VII addresses only the obligation of an \"employer” to accommodate an employee's religious beliefs and observances. However, courts have uniformly imposed upon labor organizations the same duly to provide reasonable accommodations. See, e.g., Lutcherv. Musicians Union Local 47, 633 F.2d 880, 884 (9th Cir.1981). We follow the same approach here. . Though, viewed differently, such evidence might simply reflect an evolution in Cruz's religious views toward a more steadfast opposition to union membership. . While the record does not directly disclose whether the parties intended for the case to proceed to a jury trial or a bench trial, the EEOC stated at oral argument that its usual practice is to try cases before a jury. Cf. Civil Rights Act of 1991, Pub.L. 102-166, § 102, 105 Stat. 1071 (1991) (codified at 42 U.S.C. § 1981(a)) (providing for jury trials in Title VII actions)." }, { "docid": "13755579", "title": "", "text": "court erroneously granted summary judgment with regard to the element of a bona fide religious belief, we decline to address UIA’s remaining arguments on appeal and express no view as to their merits. Reversed. . Since the UIA represents government employees, its dealings with AAA are not governed by the National Labor Relations Act, 29 U.S.C. §§ 151-169. . UIA has not argued that Cruz's resort to the employee grievance procedure precludes the instant lawsuit. Cf. Wright v. Universal Maritime Serv. Corp., 525 U.S. 70, 119 S.Ct. 391, 142 L.Ed.2d 361 (1999) (holding that general arbitration clause in a collective bargaining agreement did not require employee to use arbitration procedure for alleged violation of federal antidiscrimination law); EEOC v. Waffle House, Inc., - U.S. -, 122 S.Ct. 754, 762-66,-L.Ed.2d-(2002) (holding that employee's arbitration agreement does not prevent EEOC from initiating suit against the employer and seeking victim-specific relief). . The collective bargaining agreement between UIA and AAA contained a provision mandating that UIA will indemnify AAA for any liability the employer may incur due to the enforcement of the union security clause. This appeal does not require us to pass on the sticky question of whether such agreements are enforceable as a matter of public policy. Compare Stamford Bd. of Ed. v. Stamford Ed. Ass’n, 697 F.2d 70, 72-75 (2d Cir.1982) (holding that indemnification clauses in collective bargaining agreements which purport to relieve public employers from liability for violations of federal constitutional and civil rights are void as against public policy), and Weaver v. Univ. of Cincinnati, 970 F.2d 1523, 1536-38 (6th Cir.1992) (same), with Hohe v. Casey, 956 F.2d 399, 411-12 (3d Cir.1992) (upholding indemnity agreement providing that union would hold public employer harmless on any and all claims, suits, orders, or judgments against employer as a result of action taken with respect to union security clause). . ÚIA argued that it was entitled to summary judgment on the grounds that it had indisputably made a reasonable accommodation for each of Cruz’s objections to certain membership requirements, that Cruz's proposed accommodation of an exemption from membership was unreasonable and" }, { "docid": "13755563", "title": "", "text": "series of correspondence, meetings, and administrative procedures, UIA expressed its willingness to exempt Cruz from Saturday meetings and public strikes or picketing, to paraphrase its loyalty oath to an affirmation, and to transfer his dues to a nonprofit organization (but retain the share used to pay his fringe benefits). Only after Cruz rejected these proposals, contends UIA, did he assert his objection to union membership in any form. Cruz disputes this version of events and maintains that his opposition to union membership was steadfast and unqualified. On March 27, 1991, the Board of Directors of UIA initiated disciplinary proceedings against Cruz for his refusal to become a UIA member. At the end of these proceedings, UIA requested that AAA suspend Cruz from employment in accordance with the union security clause. Cruz appealed the resolution to the Executive Central Committee of UIA, which affirmed the proposed disciplinary measures. Cruz avers that throughout the course of these proceedings he was declared “persona non grata” by the UIA. In July 1992, Cruz filed a grievance with the Grievance Committee of the AAA to protest the Union’s decision requiring him to join in order to keep his job. The grievance was denied and, on October 11, 1993, AAA discharged Cruz for failing to comply with the union membership requirement. Shortly thereafter, Cruz filed a discrimination complaint with the EEOC. B. Proceedings below The EEOC filed a complaint on December 27, 1996, alleging that UIA had violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17, by failing to provide reasonable accommodation to Cruz’s religious beliefs and by causing AAA to terminate Cruz’s employment. The complaint sought both monetary and injunctive relief from UIA. The complaint also named AAA as a defendant under Federal Rule of Civil Procedure 19 to ensure that complete relief, including Cruz’s reinstatement, was available. AAA then filed a cross-claim against UIA, seeking reimbursement from UIA for any costs or damages AAA might be ordered to pay pursuant to the court’s resolution of the Title VII claims. The EEOC moved for summary judgment as to liability, arguing" }, { "docid": "13755569", "title": "", "text": "order was accompanied by a docket entry ordering the case closed; this entry of judgment clearly disposed of the. entire case. See generally Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945) (stating that an ap-pealable final decision generally is one which “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment”). UIA’s appeal from the district court’s ruling of October 10, 2000, therefore supports review of the earlier orders. B. Title VII Having dispensed with the EEOC’s jurisdictional arguments, we now turn to UIA’s argument that the district court erred in granting summary judgment in favor of the EEOC on the issue of liability under Title VII. Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Barbour v. Dynamics Research Corp., 63 F.3d. 32, 36 (1st Cir.1995) (quoting Fed. R.Civ.P. 56(c)). The record evidence must be construed “in the light most favorable to, and drawing all reasonable inferences in favor of, the nonmoving party.” Feliciano de la Cruz v. El Conquistador Resort & Country Club, 218 F.3d 1, 5 (1st Cir. 2000). Where, as is the case here, the party moving for summary judgment bears the burden of proof on an issue, he cannot prevail “unless the evidence that he provides on that issue is conclusive.” Torres Vargas v. Santiago Cummings, 149 F.3d 29, 35 (1st Cir.1998) (emphasis added); see also Calderone v. United States, 799 F.2d 254, 258 (6th Cir.1986) (explaining that if a summary judgment movant has the burden of proof, “his showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party”) (citation and emphasis omitted); Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.1986) (“[I]f the movant bears the burden of proof on an issue, either because he is the" }, { "docid": "13755565", "title": "", "text": "that the undisputed evidence established that, after Cruz informed the UIA of his religiously based opposition to union membership, UIA secured his discharge from employment under the union security clause, and failed to present evidence demonstrating that accommodating Cruz’s religious beliefs would cause UIA undue hardship. UIA opposed the EEOC’s motion on the ground that there remained disputed issues of fact with regard to the prima facie case of discrimination. UIA also filed its own motion for summary judgment. On December 14, 1998, the district court granted the EEOC’s motion for partial summary judgment and denied UIA’s motion. See EEOC v. Unión Independiente de la Autoridad de Acueductos Y Alcantarillados, 30 F.Supp.2d 217 (D.P.R.1998). On September 26, 2000, the district court ruled on the remaining issue of damages, awarding the plaintiff $133,136.42 “in compounded prejudgment interest and backpay.” The court entered judgment on October 10, 2000, ordering that “the case be dismissed.” On the same day, the EEOC filed a motion under Federal Rule of Civil Procedure 59 to vacate the judgment and to enter judgment “for injunctive relief in addition to the back pay previously awarded.” On October 24, while the EEOC’s motion was still pending, UIA filed its notice of appeal from the October 10 judgment. On November 14, 2000, the district court entered an order agreeing with the EEOC that injunctive relief should be- added to the damages award previously ordered. The court entered an “Amended Judgment Nunc pro Tunc,” ordering Cruz’s -reinstatement in his former or equivalent position and an injunction forbidding UIA from discriminating on the basis of religion or retaliating against any employee for filing a charge on the basis of religion. UIA did not file a separate notice of appeal following the entry of the amended judgment. II. ANALYSIS A. Jurisdictional issues The EEOC attempts to short-circuit UIA’s appeal from the outset by pressing two challenges to our jurisdiction. Though we find neither challenge persuasive, we briefly address these threshold issues before moving to the merits of the appeal. The EEOC first draws our attention to timing of UIA’s notice of appeal. UIA" }, { "docid": "13755564", "title": "", "text": "Committee of the AAA to protest the Union’s decision requiring him to join in order to keep his job. The grievance was denied and, on October 11, 1993, AAA discharged Cruz for failing to comply with the union membership requirement. Shortly thereafter, Cruz filed a discrimination complaint with the EEOC. B. Proceedings below The EEOC filed a complaint on December 27, 1996, alleging that UIA had violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17, by failing to provide reasonable accommodation to Cruz’s religious beliefs and by causing AAA to terminate Cruz’s employment. The complaint sought both monetary and injunctive relief from UIA. The complaint also named AAA as a defendant under Federal Rule of Civil Procedure 19 to ensure that complete relief, including Cruz’s reinstatement, was available. AAA then filed a cross-claim against UIA, seeking reimbursement from UIA for any costs or damages AAA might be ordered to pay pursuant to the court’s resolution of the Title VII claims. The EEOC moved for summary judgment as to liability, arguing that the undisputed evidence established that, after Cruz informed the UIA of his religiously based opposition to union membership, UIA secured his discharge from employment under the union security clause, and failed to present evidence demonstrating that accommodating Cruz’s religious beliefs would cause UIA undue hardship. UIA opposed the EEOC’s motion on the ground that there remained disputed issues of fact with regard to the prima facie case of discrimination. UIA also filed its own motion for summary judgment. On December 14, 1998, the district court granted the EEOC’s motion for partial summary judgment and denied UIA’s motion. See EEOC v. Unión Independiente de la Autoridad de Acueductos Y Alcantarillados, 30 F.Supp.2d 217 (D.P.R.1998). On September 26, 2000, the district court ruled on the remaining issue of damages, awarding the plaintiff $133,136.42 “in compounded prejudgment interest and backpay.” The court entered judgment on October 10, 2000, ordering that “the case be dismissed.” On the same day, the EEOC filed a motion under Federal Rule of Civil Procedure 59 to vacate the judgment and to enter" }, { "docid": "13755575", "title": "", "text": "Smith Steel Workers D.A.L.U. 19806, 643 F.2d 445, 448 (7th Cir.1981). The religious nature of Cruz’s professed belief therefore cannot seriously be disputed, nor has UIA mounted such a challenge. Yet, “[w]hile the ‘truth’ of a belief is not open to question, there remains the significant question of whether it is ‘truly held.’ ” United States v. Seeger, 380 U.S. 163, 185, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965). The element of sincerity is fundamental, since “if the religious beliefs that apparently prompted a request are not sincerely held, there has been no showing of a religious observance or practice that conflicts with an employment requirement.” EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569, 1575 (7th Cir.1997). The finding on this issue generally will depend on the factfinder’s assessment of the employee’s credibility. See id.; Nottelson, 643 F.2d at 454. Credibility issues such as the sincerity of an employee’s religious belief are quintessential fact questions. As such, they ordinarily should be reserved “for the factfinder at trial, not for the court at summary judgment.” Simas v. First Citizens’ Fed. Credit Union, 170 F.3d 37, 49 (1st Cir.1999); see also 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2726, at 446 (3d ed. 1998) (“Clearly, if the credibility of the movant’s witnesses is challenged by the opposing party and specific bases for possible impeachment are shown, summary judgment should be denied and the case allowed to proceed to trial”) (footnote omitted). In this case, UIA has by no means conceded that Cruz’s opposition to union membership was the product of a sincerely held belief. Instead, it has adduced specific undisputed evidence of conduct on Cruz’s part that is contrary to the tenets of his professed religious belief. For example, there is record evidence that Cruz lied on an employment application; that he is divorced; that he took an oath before a notary upon becoming a public employee; and that he works five days a week (instead of the six days required by his faith). Evidence tending to show that an employee acted" }, { "docid": "13755577", "title": "", "text": "in a manner inconsistent with his professed religious belief is, of course, relevant to the factfinder’s evaluation of sincerity. See Philbrook v. Ansonia Bd. of Ed., 757 F.2d 476, 482 (2d Cir.1985), aff'd on other grounds, 479 U.S. 60, 107 S.Ct. 367, 93 L.Ed.2d 305 (1986). UIA also points to disputed evidence that, when viewed in the light most favorable to UIA, shows that the alleged conflict between Cruz’s beliefs and union membership was a moving target: at first, Cruz objected only to certain membership requirements, and he only voiced his opposition to any form of union membership after UIA agreed to accommodate him with respect to each practice he had identified earlier. Such evidence, if credited by the factfinder, could also bear on the sincerity of Cruz’s beliefs. We therefore conclude that UIA raised a triable issue of fact, making summary judgment inappropriate. To be sure, assessing the bona fides of an employee’s religious belief is a delicate business. On the one hand, the defendant is entitled to hold the plaintiff to his burden, making it “entirely appropriate, indeed necessary, for a court to engage in analysis of the sincerity of someone’s religious beliefs.... ” Protos v. Volkswagen of Am., Inc., 797 F.2d 129, 137 (3d Cir.1986) (quoting Philbrook, 757 F.2d at 481). On the other hand, “[sjincerity analysis is exceedingly amorphous, requiring the factfinder to delve into the [employee’s] most veiled motivations and vigilantly separate the issue of sincerity from the factfinder’s perception of the religious nature of the [employee’s] beliefs.” Patrick v. LeFevre, 745 F.2d 153, 157 (2d Cir.1984). Thus, at trial the court must be careful in separating the verity and sincerity of an employee’s beliefs in order to prevent the verdict from turning on “the factfinder’s own idea of what a religion should resemble.” Philbrook, 757 F.2d at 482 (quoting L. Tribe, American Constitutional Law § 14-11, at 861 (1979)). We believe that a jury, acting under proper instructions from the trial judge, is fully capable of evaluating the parties’ evidence and making the appropriate factual determination. III. CONCLUSION Because we conclude that the district" }, { "docid": "13755571", "title": "", "text": "plaintiff or as a defendant he is asserting an affirmative defense, he must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor.”) (emphasis in original). We review the district court’s ruling on summary judgment de novo. Straughn v. Delta Air Lines, Inc., 250 F.3d 23, 33 (1st Cir.2001). Title VII forbids a labor organization “to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his ... religion....” 42 U.S.C. § 2000e-2(c)(l). The statute defines the term “religion” to include: “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” Id. § 2000e(j). Thus, in general terms, Title VII requires employers and labor organizations to accommodate, within reasonable limits, the bona fide religious beliefs and practices of employees. In order to establish a prima facie case of religious discrimination based on a failure to accommodate, the plaintiff must show that “(1) a bona fide religious practice conflicts with an employment requirement, (2) he or she brought the practice to the [Union’s] attention, and (3) the religious practice was the basis for the adverse employment decision.” EEOC v. United Parcel Serv., 94 F.3d 314, 317 (7th Cir.1996); see also Seaworth v. Pearson, 203 F.3d 1056, 1057 (8th Cir.) (per curiam), cert. denied, 531 U.S. 895, 121 S.Ct. 226, 148 L.Ed.2d 160 (2000). Once the plaintiff has established this prima facie case, the burden shifts to the union to show that it made a reasonable accommodation of the religious practice or show that any accommodation would result in undue hardship. Seaworth, 203 F.3d at 1057; Tiano v. Dillard Dep’t Stores, Inc., 139 F.3d 679, 682 (9th Cir.1998). UIA argues that the district court erroneously granted summary judgment where there remained disputed issues of fact with respect to the question of whether Cruz’s objection to union membership was the product of a “bona fide religious" }, { "docid": "13755572", "title": "", "text": "religious discrimination based on a failure to accommodate, the plaintiff must show that “(1) a bona fide religious practice conflicts with an employment requirement, (2) he or she brought the practice to the [Union’s] attention, and (3) the religious practice was the basis for the adverse employment decision.” EEOC v. United Parcel Serv., 94 F.3d 314, 317 (7th Cir.1996); see also Seaworth v. Pearson, 203 F.3d 1056, 1057 (8th Cir.) (per curiam), cert. denied, 531 U.S. 895, 121 S.Ct. 226, 148 L.Ed.2d 160 (2000). Once the plaintiff has established this prima facie case, the burden shifts to the union to show that it made a reasonable accommodation of the religious practice or show that any accommodation would result in undue hardship. Seaworth, 203 F.3d at 1057; Tiano v. Dillard Dep’t Stores, Inc., 139 F.3d 679, 682 (9th Cir.1998). UIA argues that the district court erroneously granted summary judgment where there remained disputed issues of fact with respect to the question of whether Cruz’s objection to union membership was the product of a “bona fide religious belief,” an element of the claim for which the EEOC bears the burden of proof. In support of this argument UIA points to record evidence tending to show that Cruz has, on more than a few occasions, taken actions that are at odds with his professed faith. The requirement that the employee have a “bona fide religious belief’ is an essential element of a religious accommodation claim. Title VII does not mandate an employer or labor organization to accommodate what amounts to a “purely personal preference.” Vetter v. Farmland Indus., Inc., 120 F.3d 749, 751 (8th Cir.1997). In order to satisfy this element, the plaintiff must demonstrate both that the belief or practice is religious and that it is sincerely held. See Redmond v. GAF Corp., 574 F.2d 897, 901 n. 12 (7th Cir.1978); cf. also Hager v. Sec. of Air Force, 938 F.2d 1449, 1454 (1st Cir.1991) (noting similar test for determining whether an applicant is entitled to an exemption from military service as a conscientious objector). As noted above, Title VII’s capacious definition" } ]

[ { "docid": "1716126", "title": "", "text": "Gilbert v. California, 384 U.S. 985, 86 S.Ct. 1902, 16 L.Ed.2d 1003 (1966). Appellant contends, however, that his lineup was illegal as the product of an illegal arrest, relying upon Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); see also Gatlin v. United States, 117 U.S.App. D.C. 123, 326 F.2d 666 (D.C.Cir.1963); Bynum v. United States, 104 U.S.App. D.C. 368, 262 F.2d 465 (D.C.Cir.1958). The arrest here was not illegal. Appellant relies on the fact that while it was pursuant to warrant, the complaint upon which the warrant was issued was insufficient to establish probable cause since it recited only uncorroborated hearsay.Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1957). However, upon appellant’s motion to suppress, an affidavit of the F.B.I. agent in charge was filed, establishing that there was probable cause sufficient to support a warrantless arrest. Such an arrest is valid despite an invalid warrant. Ferganchick v. United States, 374 F.2d 559 (9th Cir. 1967); Bell v. United States, 371 F.2d 35 (9th Cir. 1967). Appellant asserts that the affidavit is irrelevant since the affiant was not the person making the arrest. He was, however, the officer in charge, and it is clear that the arresting officer was acting under his direction or instruction. This is sufficient. United States v. Bianco, 189 F.2d 716 (3d Cir. 1951); cf., Travis v. United States, 362 F.2d 477 (9th Cir. 1966), cert. denied, 385 U.S. 885, 87 S.Ct. 179, 17 L.Ed.2d 113 (1966); Bynum v. United States, supra. Following trial, at 3:15 p. m. on June 24, 1965, the jury retired to deliberate. At 12:35 p. m. the following day they reported that they were unable to agree. The District Judge then gave the charge set forth in the margin. Appellant contends that this was coercive. The charge is much like that approved in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), and in our judgment was not coercive. Walsh v. United States, 371 F.2d 135 (9th Cir. 1967); Henry v. United States," } ]

[ { "docid": "21969498", "title": "", "text": "by 28 U.S.C. § 2254. Consequently, .the matters presented to this court in the petition for writ of habeas corpus are ready for decision. MUST PROBABLE CAUSE EXIST BEFORE A JUVENILE MAY BE TAKEN INTO CUSTODY ON SUSPICION OF HAVING COMMITTED A VIOLATION OF LAW WHICH WOULD CONSTITUTE A CRIME IF COMMITTED BY AN ADULT? The Fourth Amendment of the United States Constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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.” As the United States Supreme Court has interpreted this amendment, it requires that a person may be validly arrested only if there is probable cause to believe that a crime has been committed and that the person to be arrested has committed such crime. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958). While the Fourth Amendment is a limitation upon the powers of the Federal Government only, it is well settled that the prohibition of the Fourth Amendment against unreasonable arrest is enforceable against the states through the due process clause of the Fourteenth Amendment; hence, a state has no power to sanction arrests prohibited by the Fourth Amendment. Recznik v. City of Lorain, 393 U.S. 166, 89 S.Ct. 342, 21 L.Ed.2d 317 (1968); Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967); Beck v. Ohio, supra; Wong Sun v. United States, supra; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Giordenello v. United States, supra; Browne v. State, 24 Wis.2d 491, 129 N.W. 2d 175, 131 N.W.2d 169 (1964). The State contends, however, that the Fourth Amendment requirement that an arrest be based upon “probable cause” does" }, { "docid": "6814622", "title": "", "text": "actual arrest and incidental seizure of the items introduced as evidence. Appellant’s further claim that the police officers needed a warrant to examine and inventory the cardboard container and its contents lacks merit. Having properly seized the apparently stolen merchandise, the police are authorized to thoroughly examine the objects of the seizure later at police headquarters without a warrant. See Chambers, supra, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419; Cooper v. California, 386 U. S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967). Affirmed. . Not to be confused with Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947), also a search and seizure case, overruled by Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). . Vernon’s Ann.Mo.Stat. §§ 560.161, 560.-270 (Supp.1969). . Vernon’s Ann.Mo.Stat. § 544.200 (1953) ; see State v. Novak, 428 S.W.2d 585 (Mo. 1968). . State law determines the validity of an arrest, unless violative of the Constitution. Miller v. United States, 357 U.S. 301, 305, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958) ; United States v. Di Re, 332 U.S. 581, 589, 68 S.Ct. 222, 92 L.Ed. 210 (1948) ; Klingler v. United States, 409 F.2d 299, 302 (8th Cir.), cert. denied, 396 U.S. 859, 90 S.Ct. 127, 24 L.Ed.2d 110 (1969) ; Theriault v. United States, 401 F.2d 79, 81 (8th Cir. 1968), cert. denied, 393 U.S. 1100, 89 S.Ct. 898, 21 L.Ed.2d 792 (1969)." }, { "docid": "1477180", "title": "", "text": "PER CURIAM: Earnest T. Page was convicted in 1965 of six violations of the federal narcotics laws. He appealed, challenging the admission into evidence of narcotics seized at the time of his arrest. He asserted that the warrant for his arrest was invalid and, in addition, that the search incident thereto was unreasonable in scope. This court affirmed, holding that, since the narcotics were material solely to two of the six counts, it was unnecessary to determine the issues. Page v. United States, 356 F.2d 337 (9th Cir. 1966). Page filed the present application under 28 U.S.C. § 2255, again challenging the validity of his arrest and of the search. This time, however, he urged that the trial court consider the illegally seized evidence in fixing sentence. See Verdugo v. United States, 402 F.2d 599 (9th Cir. 1968). The district court denied relief, finding that the arrest and search were valid. We agree. But even if the warrant was invalid the arrest was not, for the agent himself had probable cause to believe Page had committed a violation of the narcotic laws and thus, aside from the warrant, could make a valid arrest and search incident thereto. 26 U.S.C. 7607(2) 1964; Ray v. United States, 412 F.2d 1052 (9th Cir. 1969); Rocha v. United States, 387 F.2d 1019 (9th Cir. 1967); Bell v. United States, 371 F.2d 35 (9th Cir. 1967) ; United States v. Hall, 348 F.2d 837 (2d Cir. 1965). Page’s second claim, concerning the scope of the search, rests on Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), but that decision is not retroactive, and this search under the pre-existing rule was not unreasonable. Williams v. United States, 418 F.2d 159 (9th Cir. 1969); and see United States v. Bellinger, 422 F.2d 723 (9th Cir. 1970). Petitioner’s final contention that he was without effective assistance of counsel on the motion to suppress is likewise without merit. Affirmed. . The narcotic agent testified that on the day of the arrest he negotiated a sale of heroin from Page to himself. . The arrest" }, { "docid": "2158754", "title": "", "text": "so, a search of the camera case would have been justified under the “grabbing-distance” principle of Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). However, Riggs was not formally placed under arrest until after tests confirmed that the white powder was heroin, and the Government does not contend that Riggs was arrested de facto prior to the search of the camera case, although we suspect that her chances of being released without being arrested were exceedingly poor. In United States v. Gorman, 355 F.2d 151, 159-160 (2 Cir. 1965), cert. denied, 384 U.S. 1024, 86 S.Ct. 1962, 16 L.Ed.2d 1027 (1966), we left open the question whether an incidental search which would have been justifiable after an arrest is equally so when there was probable cause for arrest but arrest was postponed; we indicated that, absent controlling contrary authority, of which there then was none, we would follow Mr. Justice Traynor in People v. Simon, 45 Cal.2d 645, 648, 290 P.2d 531, 533 (1955), and uphold such a search. The justification for such an intrusion is the probable cause to believe that the individual has committed a crime and the need for immediate action to prevent the use of weapons against the arresting officer or destruction of evidence of the crime, see Chimel v. California, supra, 395 U.S. at 763, 89 S.Ct. 2034, 23 L.Ed. 2d 685; postponement of the further intrusion of arrest does not remove the justification for the search and in no way prejudices the individual’s Fourth Amendment rights. Subsequent authorities have now established that view as firmly as anything short of a Supreme Court decision can. See Bailey v. United States, 128 U.S.App.D.C. 354, 389 F.2d 305, 308 (1967) (Wright, J.) (dictum); id. at 316 (Leventhal, J., concurring); Henderson v. United States, 405 F.2d 874, 875 (5 Cir. 1968), cert. denied, 395 U.S. 906, 89 S.Ct. 1747, 23 L.Ed.2d 219 (1969); United States v. Skinner, 412 F.2d 98, 103 (8 Cir.), cert. denied, 396 U.S. 967, 90 S.Ct. 448, 24 L.Ed.2d 433 (1969); United States v. Thomas, 432 F.2d 120," }, { "docid": "22879781", "title": "", "text": "survive constitutional inhibition only upon a showing that the surrounding facts brought it within one of the exceptions to the rule that a search must rest upon a search warrant”. Rios v. United States, 364 U.S. 253, 261, 80 S.Ct. 1431, 1436, 4 L.Ed.2d 1688 (1960); Stoner v. State of California, 376 U.S. 483, 486, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964). In this case, if the search of the automobile and seizure of the pistol is to survive the proscription of the Fourth Amendment, it must be under the exception for searches incident to a lawful arrest. See, e. g., United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950); Harris v. Tahash, 353 F.2d 119 (8th Cir. 1965). The validity of such a search and seizure is dependent initially upon a lawful arrest, Draper v. United States, 358 U.S. 307, 310-314, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Mulligan v. United States, 358 F.2d 604, 606 (8th Cir. 1966), the lawfulness of which is to be determined by state law insofar as the arrest is not violative of the Constitution. Miller v. United States, 357 U.S. 301, 305, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958); United States v. Di Re, 332 U.S. 581, 589, 68 S.Ct. 222, 92 L.Ed. 210 (1948); Theriault v. United States, 401 F.2d 79, 81 (8th Cir. 1968), cert. denied, 393 U.S. 1100, 89 S.Ct. 1201, 22 L.Ed.2d 474 (1969). The constitutional validity of an arrest is dependent upon the existence of probable cause. E. g., Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). Under South Dakota law, a peace officer may arrest without a warrant: (1) for a public offense committed or attempted in his presence; (2) when a felony has in fact been committed, and the officer has “reasonable cause” for believing the person arrested to have committed it; and (3) at night" }, { "docid": "7826407", "title": "", "text": "caution in the belief that’ an offense has been or is being committed.” See also Henderson v. United States, 5 Cir., 1968, 405 F.2d 874, 875, cert. denied, 395 U.S. 906, 89 S.Ct. 1747, 23 L.Ed.2d 219 (1969); Ward v. United States of America, 5 Cir., 1961, 288 F. 2d 620, 621. In Beck v. State of Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 228, 13 L.Ed.2d 142 (1964), the Supreme Court, citing the landmark decision of Carroll v. United States, supra, which involved a misdemeanor, said, “When the constitutional validity of an arrest is challenged, it is the function of a court to determine whether the facts available to the officers at the moment of the arrest would ‘warrant a man of reasonable caution in the belief’ that an offense has been committed. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543.” Having found that the arrest was lawful, it follows that the seizure of the sugar and truck as an incident to that arrest was lawful as well as the admission of evidence pertinent thereto. Beck v. State of Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964); United States v. Rabinowitz, 339 U.S. 56, 65, 70 S.Ct. 430, 435, 94 L.Ed. 653 (1950). The reasonable cause which the seizing officer had for believing that the contents of the vehicle offended against the law was an independent ground for seizure, Carroll v. United States, 267 U.S. at 158, 159, 45 S.Ct. at 287, and there was abundant evidence that Agent Brown, from his past ex perience with appellants and from the actual witnessing of the loading of the truck, had reasonable cause under the circumstances. There was substantial evidence to justify the denial by the court of the motion to suppress and to support the verdict. Consequently, taking the view most favorable to the Government, we may not upset the verdict. If we were to follow appellants’ theory to its logical conclusion, there could never be a warrantless arrest for the possession of materials intended for use" }, { "docid": "12803465", "title": "", "text": "S.Ct. 2535, 37 L.Ed.2d 596 (1973) ; Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973) ; and Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974) ; also see: Note, Warrantless Searches and Seizures of Automobiles, 87 Harv.L.Rev. 835 (1974). . Appellants emphasize Handorf’s testimony, supra, that “we didn’t think that we really had enough probable cause to put on paper.” While such testimony may be properly considered, it is hardly controlling. A police officer’s subjective understanding of legal standards no more defeats a valid search than his good faith would excuse a defective one. The standard is primarily objective. . In overruling the motion Judge Swinford made only limited findings. Therefore, we take that view of the evidence which is reasonable and which supports his ruling. See e. g. United States v. Montos, 421 F.2d 215, Footnote 1 at 219 (5th Cir. 1970), cert. den. 397 U.S. 1022, 90 S.Ct. 1262, 25 L.Ed.2d 532 (1970), and Scarbeck v. United States, 115 U.S.App.D.C. 135, 317 F.2d 546, 562 (1972), cert. den. 374 U.S. 856, 83 S.Ct. 1897, 10 L.Ed .2d 1077 (1963). . It can be argued that the appellants were under arrest as soon as the automobile was stopped and, therefore, our inquiry should be whether there was probable cause to arrest the appellants without a warrant. Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1958). Even if we view the facts in this manner, the result is still the same. Probable cause for a warrantless arrest exists if the facts and circumstances known to the arresting officer at the moment of the arrest would warrant a prudent man in believing that an offense has been or is being committed. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959) ; Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964), and United States v. Burch, 471 F.2d 1314 (6th Cir. 1973). . We are aware of this circuit’s opinion in Hackett v. United States, 348 F.2d 883" }, { "docid": "22879782", "title": "", "text": "law insofar as the arrest is not violative of the Constitution. Miller v. United States, 357 U.S. 301, 305, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958); United States v. Di Re, 332 U.S. 581, 589, 68 S.Ct. 222, 92 L.Ed. 210 (1948); Theriault v. United States, 401 F.2d 79, 81 (8th Cir. 1968), cert. denied, 393 U.S. 1100, 89 S.Ct. 1201, 22 L.Ed.2d 474 (1969). The constitutional validity of an arrest is dependent upon the existence of probable cause. E. g., Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). Under South Dakota law, a peace officer may arrest without a warrant: (1) for a public offense committed or attempted in his presence; (2) when a felony has in fact been committed, and the officer has “reasonable cause” for believing the person arrested to have committed it; and (3) at night on “reasonable cause” even though it afterwards appears that a felony has not been committed. S.D.Code § 34.1609 (Supp.1960). “Reasonable cause”, as used in the above statute, is equated with the Fourth Amendment’s requirement of probable cause. See, e. g., Reed v. United States, 401 F.2d 756 (8th Cir. 1968); Theriault v. United States, supra. Probable cause exists where the facts and circumstances within the officers’ knowledge, and of which they have reasonably trustworthy, information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime has been or is being committed. Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); see also, Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); Beck v. State of Ohio, 379 U.S. 89, 98, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Gullett v. United States, 387 F.2d 307, 311 (8th Cir. 1967), cert. denied, 390 U.S. 1044, 88 S.Ct. 1645, 20 L.Ed.2d 307 (1968). Fourth Amendment protection requires that courts" }, { "docid": "18363144", "title": "", "text": "Ker v. California, 374 U.S. 23, 32, 83 S. Ct. 1623, 1629, 10 L.Ed.2d 726 (1963); Johnson v. United States, 333 U.S. 10, 14-15, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948); Carlton v. Estelle, 5 Cir., 1973, 480 F.2d 759, cert. denied, 414 U.S. 1043, 94 S.Ct. 546, 38 L.Ed.2d 334 (1973). See generally Note, Warrantless Searches and Seizures of Automobiles, 87 Harv. L.Rev. 835 (1974). Upon consideration of these values in the context of the facts and circumstances of this case, we conclude that the search of the appellee and the seizure of the narcotics did not violate the Fourth Amendment: the search was made with probable cause and the exigencies of the situation required that' the search be conducted without a warrant. See, e. g., Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Ker v. California, supra, (plurality opinion); McDonald v. United States, 335 U.S. 451, 454-455, 69 S.Ct. 191, 192-193, 93 L.Ed. 153 (1948); Johnson v. United States, 333 U.S. 10, 15, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). III. The delicate weighing of the interests of privacy and law enforcement which defines the Fourth Amendment is reflected in the first instance in the required proof of the existence of probable cause as a predicate of a valid search or arrest. See, e. g., Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964) ; United States v. Sanchez, 5 Cir., 1969, 412 F.2d 1177, cert. granted in part and judgment vacated, cert, denied in part, 397 U.S. 320, 90 S.Ct. 1130, 25 L.Ed.2d 338 (1970). As defined long ago, probable cause is constituted by “facts and circumstances . . . such as to warrant a man of prudence and caution in believing that the offense has been committed . . . . ” Stacey v. Emery, 97 U.S. 642, 645, 24 L.Ed. 1035, 1036 (1878); see Carroll" }, { "docid": "4193977", "title": "", "text": "testimony was introduced against the codefendants Marratto and Gonzalez without the offer of any money orders, the jury was unable to reach a verdict as to them, and mistrials were declared. We turn to John’s appeal. His first contention is that the court erred in denying his motion to suppress evidence claimed to be the fruit of an illegal search. On April 10, 1968, federal narcotics agents arrived at the residence of John Robles. They were carrying an arrest warrant issued February 14, 1968. After announcing that they had a warrant for Robles’ arrest and being denied entrance, the officers forced the door and made the arrest. The officers then conducted a search of the premises. In a bedroom night stand, they found a receipt for a cashier’s check payable to Hernandez and a postcard addressed to John Robles that began, “Look here Brother Pelón.” Elsewhere in the bedroom, they found a slip of paper bearing the name “Yolie,” together with Yolando Jacobo’s phone number. In a photograph album stored in a closet, they found two pictures of Lannom. Were the rule of Chimel v. California (1969) 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 applicable to searches conducted before the Chimel decision, this search incident to John’s arrest would have been invalid, but we have held to the contrary in Williams v. United States (9th Cir. 1969) 418 F.2d 159, cert. granted 397 U.S. 986, 90 S.Ct. 1120, 25 L.Ed.2d 394 (1970). Matching this search against the pr e-Chimel standards of United States v. Rabinowitz (1950) 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 and Harris v. United States (1947) 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399, we hold the search valid. (See also Jack v. United States (9th Cir. 1967) 387 F.2d 471, 473-474, cert. denied 392 U.S. 934, 88 S.Ct. 2299, 20 L.Ed.2d 1393 (1968).) He also complains that certain of the testimony of Wright concerning transactions between him and John should have been stricken because those transactions occurred after the alleged conspiracy had ended. There was no error in admitting the challenged" }, { "docid": "18018245", "title": "", "text": "receiver down.” Mrs. Dye remained on the line and heard approximately ten seconds of a conversation that would arouse the suspicions of any reasonable person that a crime may have been committed. Under the circumstances she did what she thought was right. She listened and then reported what she had heard to the first policemen she encountered. We find no evidence that Congress in passing Title III of the Omnibus Crime Control and Safe Streets Act of 1968 intended such conduct to be unlawful. See S.Rep.No.1097, supra, at 2177-83. This is not the case of an illegal wiretap by the Government or the case of a malicious violation of one person's privacy by another through intentional eavesdropping. It is the simple case of a motel switchboard operator who inadvertently heard a suspicious conversation in the course of her employment and in good faith told a policeman what she had heard. The telephone conversation was therefore admissible as evidence. See Roberts v. State, 1969, 453 P.2d 898, 904 (Alas.), cert. denied, 396 U.S. 1022, 90 S.Ct. 594, 24 L.Ed.2d 515 (1970); State of Arizona ex rel. Flournoy v. Wren, 1972, 108 Ariz. 356, 360-61, 498 P.2d 444, 448-89; People v. Sierra, 1973, 74 Misc.2d 332, 343 N.Y.S.2d 196 (S.Ct.). III. Probable Cause A warrantless arrest, as in this case, is constitutional if at the moment the arrest was made the arresting officer had probable cause to make it. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). Savage’s second contention is that the police did not have probable cause to arrest him and therefore his arrest and the search of his motel room immediately following his arrest violated the fourth amendment. Probable cause exists “when the facts and circumstances within the arresting officer’s knowledge and of which he had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that an offense has been or is being committed.” United States v. Lowery, 5 Cir., 1970, 436 F.2d 1171, 1174, cert. denied, 401 U.S. 978, 91 S.Ct. 1208, 28 L.Ed.2d" }, { "docid": "8536666", "title": "", "text": "under such statutes is valid only if the arrest is not violative of the Constitution. Klingler v. United States, 409 F.2d 299 (8th Cir.), cert. denied, 396 U.S. 859, 90 S.Ct. 127, 24 L.Ed.2d 110 (1969). Article 14.03 of the Vernon’s Ann.Texas Code of Criminal Procedure is such a statute. This Court, assumes, without deciding, that said statute is constitutional as written. Despite the use of the word “suspicious” in this statute, it is the rule in this Circuit that a person may not be arrested on suspicion alone, Nicholson v. United States, 355 F.2d 80 (5th Cir.), cert. denied, 384 U.S. 974, 86 S.Ct. 1866, 16 L.Ed.2d 684 (1966), and that a hunch does not constitute probable cause, Lathers v. United States, 396 F.2d 524 (5th Cir. 1968). Article 14.03 of the Texas Code of Criminal Procedure provides for the arrest of a person in suspicious places and under circumstances which reasonably show that the person arrested has been guilty of some felony or breach of the peace, or threatens or is about to commit such an offense. There is no evidence or any reason to believe that in this case such circumstances existed as shown in Findings of Fact 8 above, and therefore the arrest was invalid under Art. 14.03, Texas Code of Criminal Procedure. United States v. Butler, 223 F.Supp. 24, 26 (W.D.Tex.1963). 3. An arrest which is made without a warrant is not violative of the Constitution only if “at the moment the arrest was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [person arrested] had committed or was committing an offense.” Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); see also Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Klingler v. United States, 409 F.2d 299 (8th Cir.), cert. denied, 396 U.S. 859, 90 S.Ct. 127, 24 L.Ed.2d 110 (1969)." }, { "docid": "286399", "title": "", "text": "damages, arising under the Fourth Amendment, lay against Federal narcotics officers who had allegedly broken into the plaintiff’s apartment without a warrant, searched it, arrested the plaintiff, and subjected him to unreasonable physical force — all without probable cause to believe that he was engaged in criminal activity. Relying on Bivens, the . Sixth Circuit recently intimated that FBI agents who had purportedly executed per- ' jured affidavits to support a warrant for plaintiff’s arrest could be held liable for money damages in a suit analogous to a common law action for false arrest and malicious prosecution. Jones v. Perrigan, 459 F.2d 81 (6th Cir., 1972). In Bethea v. Reid, 445 F.2d 1163 (3d Cir., 1971), cert. denied, 404 U.S. 1061, 92 S.Ct. 747, 30 L.Ed.2d 749 (1972), an action for damages was held to lie against Federal officers who had allegedly conspired to violate the Fourth and Fifth Amendment rights of the plaintiff by unlawfully seizing certain of his property and kñowingly using perjured testimony to secure his conviction on a charge of bank robbery. Similarly, in a suit alleging abridgement of Fifth Amendment rights by the falsification of documentary evidence and perjury, a cause of action for both money damages and injunctive relief was held to lie. United States ex rel. Moore v. Koelzer, 457 F.2d 892 (3d Cir., 1972). . See, e. g., Giordenello v. United States, 357 U.S. 480, 485-487, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958). . Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964) ; Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959) ; Pendergrast v. United States, 135 U.S.App.D.C. 20, 27-28, 416 F.2d 776, 783-784, cert. denied, 395 U.S. 926, 89 S.Ct. 1782, 23 L.Ed.2d 243 (1969). . E. g., Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). See Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). . Bivens v. Six Unknown Named Agents, supra. . Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966) ; Gomez v. Wilson, 323 F.Supp. 87" }, { "docid": "22810891", "title": "", "text": "the propriety of the search, appellant properly recognizes the ominous relevance of such cases as United States v. Frankenberry, 387 F.2d 337 (2d Cir. 1967); Malone v. Crouse, 380 F.2d 741 (10th Cir. 1967), cert. denied, 390 U.S. 968, 88 S.Ct. 1082, 19 L.Ed.2d 1174 (1968); Cotton v. United States, 371 F.2d 385 (9th Cir. 1967); and Grillo v. United States, 336 F.2d 211 (1st Cir. 1964), cert. denied, 379 U.S. 971, 85 S. Ct. 669, 13 L.Ed.2d 563 (1965). We would add United States v. Caruso, 358 F.2d 184 (2d Cir. 1966), cert. denied, 385 U.S. 862, 87 S.Ct. 116, 17 L.Ed.2d 88 (1966); Rodgers v. United States, 362 F.2d 358 (8th Cir. 1966), cert. denied, 385 U.S. 993, 87 S.Ct. 608, 17 L.Ed.2d 454 (1966); Charles v. United States, 278 F.2d 386, 389 n. 2 (9th Cir. 1960), cert. denied, 364 U.S. 831, 81 S.Ct. 46, 5 L.Ed.2d 59 (1960); and Baskerville v. United States, 227 F.2d 454 (10th Cir. 1955). Appellant asserts, however, that the teaching of these cases has been overruled by Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), which he further asserts is the first occasion the Court has had to consider whether a search at a police station following an earlier arrest is valid. He points to Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964), where the Court merely proceeded “on the premise that, if the arrest itself was lawful, [permissible] limits were not exceeded” by such a search. We recognize that the range of Fourth Amendment cases and the pertinent language of the Court, from Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925), to Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), have generally dealt with searches of cars, rooms, offices, and homes, but not of a person shortly after being arrested and conducted to a police station. Nevertheless, the Court was, in Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960), required" }, { "docid": "9506089", "title": "", "text": "been seen at the house and that Cochran was arrested there. No facts are recited from which it could be inferred that Bailey and Cochran were other than casual social guests at the residence. At the trial, there was evidence that Bailey and Cochran had leased the house, but that fact was not before the issuing magistrate. “[A] 11 data necessary to show probable cause for the issuance of a search warrant must be contained within the four corners of a written affidavit given under oath. . . .” United States v. Anderson (9th Cir. 1971) 453 F.2d 174, 175. See also Giordenello v. United States (1958) 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503. In short, there is nothing but conjecture to sustain the conclusion that the house contained the objects of the search. As we observed in United States v. Lucarz (9th Cir. 1970) 430 F.2d 1051, 1055: “[S] imply from the existence of probable cause to believe a suspect guilty, [it does not follow in all cases] that there is also probable cause to search his residence. If that were so, there would be no reason to distinguish search warrants from arrest warrants, and cases like Chimel v. California, 395 U.S. 752 [89 S.Ct. 2034, 23 L.Ed. 2d 685] (1969), . . . would make little sense.” The Government argues that the searches can be upheld even though the warrants are invalid on the theory that the searches were incident to the arrests. They weren’t. The search of the automobile was accomplished at both a time and a place substantially removed from the arrest. Also, the search of the house substantially exceeded the scope permissible by Chimel, supra. The Government also argues that the search of the automobile could be sustained under the doctrine of Chambers v. Maroney (1970) 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419. The facts do not bring the case within the Chambers ambit. There was no probable cause to believe the vehicle contained the fruit of the crime. There were no exigent circumstances justifying the search. (Coolidge v. New Hampshire" }, { "docid": "17352886", "title": "", "text": "we must conclude, as we did in Soles, supra, that the request for disclosure had no real possibility of affording a defense that could create a reasonable doubt in the mind of a reasonable juror. Edmonds next argues that no probable cause existed for his warrantless arrest at the bus depot. Probable cause to arrest exists when an officer has knowledge of facts and circumstances “sufficient to warrant a prudent man in believing” that an offense is being or has been committed. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142, 145 (1964). Since the actions by the authorities were triggered largely by an informant’s tip, we must first consider whether that hearsay information satisfied the standards formulated by the Supreme Court in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), (1) that the informant be shown to be reliable and credible and (2) that the information provided demonstrates the underlying circumstances from which the informant concluded that the accused was engaged in criminal activity. The informant in the instant case was personally known to Detective Balmer and had previously supplied the authorities with information which had led to five purchases of narcotics by undercover agents and three seizures of heroin and cocaine. In fact, information from this same source had resulted in Edmonds’ February 1974 arrest in Norfolk for possession of drugs. Such a proven “track record” is clearly sufficient to satisfy the Aguilar-Spinelli requirement of informant reliability. United States v. Rollins, 522 F.2d 160, 164 (2d Cir. 1975); United States v. Sultan, 463 F.2d 1066, 1069 (2d Cir. 1972); United States v. Acarino, 408 F.2d 512 (2d Cir.), cert. denied, 395 U.S. 961, 89 S.Ct. 2101, 23 L.Ed.2d 746 (1969); United States ex rel. Cunningham v. Follette, 397 F.2d 143 (2d Cir. 1968), cert. denied, 393 U.S. 1058, 89 S.Ct. 699, 21 L.Ed.2d 699 (1969). We now turn to an assessment of whether the informant either detailed the manner in which the information" }, { "docid": "12224924", "title": "", "text": "777 (1964); Chimel v. California, 395 U.S. 752, 764 n. 9, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). “Carroll, supra, holds a search warrant unnecessary where there is probable cause to search an automobile stopped on the highway; the car is movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained. Hence, an immediate search is constitutionally permissible.” Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). The fact that the automobile had been moved to a different place would not necessarily eliminate the propriety of a search without a warrant. Probable cause may continue to exist and the mobility of the automobile may make even a warrantless search proper, according to the Chambers case. In the present case, however, mobility of the ear can hardly be said to have been a viable factor. The car had been disabled by the sheriff, he had possession of the keys, it was in a place under his control, and the car was locked. Accordingly, a warrantless search would not have been merited, and issuance of a warrant based upon probable cause became necessary. In determining whether probable cause existed for the issuance of the search warrant, no evidence beyond the affidavit upon which it was issued may be considered, because it contained the only facts apparently brought to the attention of the county judge who issued the warrant. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958); Wangrow v. United States, 399 F.2d 106 (C.A. 8th Cir. 1968), cert. denied 393 U.S. 933, 89 S.Ct. 292, 21 L.Ed.2d 270. Possibly, the one exception is that other evidence may be considered which tends to discredit or impeach the assertions of the affidavit. United States v. Roth, 391 F.2d 507 (C.A. 7th Cir. 1967). The affidavit of the sheriff stated that the sheriff had found the automobile in Merriman, had located in the defendant’s pocket the keys which fit the car after" }, { "docid": "5510317", "title": "", "text": "reasonably cautious and prudent peace officer in the circumstances of the moment. Probable cause to arrest depends “upon whether, at the moment the arrest was made, * * * the facts and circumstances within [the arresting officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). . . . And in making this assessment we do not isolate for independent analysis each factual circumstance, but rather we view the action of the arresting officers on the basis of the cumulative effect of such facts in the totality of the circumstances. . . . (Citations omitted.) See also, Theriault v. United States, 401 F.2d 79, 81 (8th Cir. 1968), cert. denied, 393 U.S. 1100, 89 S.Ct. 898, 21 L.Ed.2d 792 (1969). In the instant case the arresting officers had knowledge of such facts and circumstances as would warrant a prudent man in believing that Mrs. Sneed was committing the offense of possessing heroin with intent to distribute. They knew that Arthur had been accompanied by a young woman (Adele Holmes) when he sold heroin to informant Clark on May 20; they had reasonably trustworthy information that the Buckhanons frequently used female couriers to accompany them on their drug runs; they had been told by other agents that Arthur and Mrs. Sneed had boarded the plane together in Los Ange-les; they knew that Arthur had been negotiating to sell heroin to Clark in Minneapolis; they saw Arthur and Mrs. Sneed máke contact in the Minneapolis airport. In short, they had every reason to believe that either Arthur or Mrs. Sneed or both of them were in possession of a substantial quantity of heroin. A case very similar to this one on its facts is United States v. Lugo-Baez, 412 F.2d 435, 437-439 (8th Cir. 1969), cert. denied, 397 U.S. 966, 90 S.Ct. 1000, 25 L.Ed.2d 257 (1970). In that case, too, all that the government agents knew was" }, { "docid": "23236824", "title": "", "text": "to extract the pistol from the box. Having done this and discovered two more pistols in the box in the process, the officers were not required to disregard them. . 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950). . 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947). . E. g., Ker v. California, 374 U.S. 23, 42, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963) ; Abel v. United States, 362 U.S. 217, 235-239, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960) ; cf., Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 13 L.Ed.2d 142 (1964). In Harris the Court upheld the warrantless, incident to arrest search of an entire four room apartment. Rabinomtz approved the intensive search of a one room business office, including the desk, safe and file cabinets, again as incident to an arrest. . 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). . Id. at 763, 89 S.Ct. at 2040. . The Supreme Court has thus far expressly refrained from deciding this issue. See Vale v. Louisiana, 399 U.S. 30, 90 S. Ct. 1969, 26 L.Ed.2d 409; Shipley v. California, 395 U.S. 818, 89 S.Ct. 2053, 23 L.Ed.2d 732 (1969) ; Von Cleef v. New Jersey, 395 U.S. 814, 89 S.Ct. 2051, 23 L.Ed.2d 728 (1969). . 395 U.S. at 768, 89 S.Ct. at 2042. Appellant argues that Chimel did not in fact establish a new standard but rather merely clarified previous law, and thal. the Chimel holding had been clearly foreshadowed in prior decisions. We cannot agree. This court has recently stated that the Supreme Court in Chimel “importantly restricted the scope of a search of premises that- could be made without a warrant on the ground that it was incident to arrest * * Dorman v. United States, 140 U.S.App.D.C. ; at ; 435 F.2d 390 (April 15, 1970, en banc). See also United States v. Thweatt, 140 U.S.App.D.C. 120, at 123, n. 4, 433 F.2d 1226, at 1229 (1970), recognizing but not deciding the question of Chimel’s retroactivity. Furthermore, as the Third Circuit has recently observed," }, { "docid": "5454244", "title": "", "text": "the Court recognizes that such consideration is unnecessary if the Court is correct in its basic holdings that the warrant was valid and was validly executed at least as far as the seizure at the barn is concerned. But the Court also recognizes that the Court of Appeals may not agree with the basic holdings. Hence, consideration of the alternative theory is desirable. It is well established that an officer may make an arrest without a warrant where a felony is being committed in his presence or where he has reasonable cause to believe that the person arrested has committed a felony. And subject to rather strict limitations which prevail at present under holdings like Chimel v. California, 1969, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, an officer making a lawful arrest may effect a valid warrantless search and seizure incident to the arrest. An officer who sees contraband or evidence in plain view may validly seize it provided that he is rightfully in a position to see the object or material. Harris v. United States, 1968, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067. In Giordenello v. United States, 1958, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503, the defendant had been arrested and had also been searched as an incident to the arrest. The warrant was attacked as having been invalid, but it was upheld by the District Court and by the Court of Appeals. On certiorari the Supreme Court reversed. In the proceedings before the Supreme Court the Government raised the contention that the officer was justified in making the arrest and search incident thereto even in the absence of a warrant. The Supreme Court held that such a contention could not be raised for the first time on appeal but indicated that upon a new trial the Government would be free to urge that the arrest and search were legal without relying on the warrant. 357 U.S. at 488, 78 S.Ct. 1245. See also Hagans v. United States, 5 Cir., 1963, 315 F.2d 67. Here the question has been raised at a" } ]

[ { "docid": "22607493", "title": "", "text": "an officer seizes an automobile or the liquor in it without a warrant and the facts as subsequently developed do not justify a judgment of condemnation and forfeiture, the officer may escape costs or a suit for damages by a, showing that he had reasonable or 'probable cause' for the seizure. Stacey v. Emery, 97 U. S. 642. The méasure of legality of such a seizure is, therefore, that the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes has contraband liquor therein which is being illegally transported. We here find the line of distinction between legal and illegal seizures of liquor in transport in vehicles. It is certainly a reasonable distinction. It gives the owner of an automobile or other vehicle seized under Section 26, in absence of probable cause, a right to have restored to him the automobile, it protects him under the Weeks and Amos cases from use of the liquor as evidence against him, and it subjects the officer making the seizures to damages. On the other hand, in a case showing probable cause, the Government and its officials are given the opportunity which they should have, to make the investigation necessary to trace reasonably suspected contraband goods and to seize them. Such a rule fulfills the guaranty of the Fourth Amendment. In cases where the securing of a warrant is reasonably practicable, it must be used, and when properly supported by affidavit and issued after judicial approval protects the seizing officer against a suit for damages. In cases where seizure is impossible except without warrant, the seizing officer acts unlawfully and at his peril unless he can show the court probable cause. United States v. Kaplan, 286 Fed. 963, 972. But we are pressed with the argument that if the search of the automobile discloses the presence of liquor and leads under the statute to the arrest of the person in charge of the automobile, the right of seizure should be limited by the common law rule as to the circumstances justifying an arrest without warrant" } ]

[ { "docid": "12803453", "title": "", "text": "Allen’s automobile. Handorf was questioned as to why he had not obtained a search warrant for the automobile and the following colloquy occurred: Q. So all you knew was that there was going to be a delivery and you did not know the type of car or number of people, is that correct? A. That’s correct. Q. What was the reason that you did not, after you saw this automobile and the people go in and come out, what was the reason you did not go and get a search warrant for that car at that time? A. The time element involved and also we didn’t think that we really had enough probable cause to put on paper. Yet we had enough probable cause and prudence to stop that car and check it. They had made a couple of what we considered overt acts. Q. What overt acts were those? A. Well, one, the correct time of day — our information was that the delivery would be made at 1:00 p. m. and they arrived at the immediate time of 1:20 p. m., they dropped off one person who turned around a couple of times, Michael Sturgeon, looked around, looked up to the third floor, made either a gesture or something to the third floor and then the ear came around the block, parked and everyone alighted. We knew once they were in the house the sale wouldn’t go down. They wouldn’t stay in very long. They stayed about fifteen or twenty minutes, all of them got back in the ear and headed back towards the Ohio River. Upon the foregoing facts Judge Swinford overruled appellants’ motion to suppress both the evidence seized from the automobile and that seized from the persons of Upthegrove and Dunn. We agree with this ruling because on the record before us probable cause existed for the search and exigent circumstances excused the failure to obtain a search warrant for the automobile. We have no difficulty in finding that exigent circumstances existed within the meaning of Carroll v. United States, 267 U.S. 132, 45 S.Ct." }, { "docid": "22658107", "title": "", "text": "to litigate the issue in every case. In similar fashion, “practically since the beginning of the Government,” Congress and the Court have recognized “a necessary difference between a search of a store’ dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” Carroll v. United States, 267 U. S. 132, 153 (1925). As in the case of an arrest and accompanying search of a person, searches of vehicles on probable cause but without a warrant have been deemed reasonable within the meaning of the Fourth Amendment without requiring proof of exigent circumstances beyond the fact that a movable vehicle is involved: The rule has been consistently recognized, see Cooper v. California, supra; Brinegar v. United States, 338 U. S. 160 (1949); Harris v. United States, supra, at 168 (dissenting opinion); Davis v. United States, 328 U. S. 582, 609 (1946) (dissenting opinion); Scher v. United States, 305 U. S. 251 (1938); Husty v. United States, 282 U. S. 694 (1931); United States v. Lee, supra; and was reaffirmed less than a year ago in Chambers v. Maroney, supra, where a vehicle was stopped on the highway but was searched at the police station, there being probable cause but no warrant. The majority now approves warrantless searches of vehicles in motion when seized. On the other hand, warrantless, probable-cause searches of parked but movable vehicles in some situations would be valid only upon proof of exigent circumstances justifying the search. Although I am not sure, it would seem that, when police discover a parked car that they have probable cause to search, they may not immediately search but must seek a warrant. But if before the warrant arrives, the car is put in motion by its owner or others, it may be stopped and searched on the spot or elsewhere. In" }, { "docid": "11654148", "title": "", "text": "395 U.S. 752, 762, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Katz v. United States, 389 U.S. 347, 356-358, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). Two of the narrowly defined exceptions are for a border search, Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), and for the search of a moving automobile, Chambers v. Maroney, 399 U.S. 42, 49, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Williams v. United States, 404 F.2d 493 (5th Cir. 1968). Nieto argues that the Almeida-Sanchez exception for border searches does not apply here, because the search was conducted outside the circumscribed zone of a border or its functional equivalent. This may be true, but the government does not rely upon the border-search exception. Instead, it invokes the Carroll exception, which itself was carefully reaffirmed in Almeida-Sanchez: “It is settled, of course, that a stop and search of a moving automobile can be made without a warrant Carroll v. United States, 267 U.S. 132 [45 S.Ct. 280, 69 L.Ed. 543]. . . . The Court [in Carroll] recognized that a moving automobile on the open road presents a situation ‘where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.’ Id., at 153 [45 S.Ct., at 285]. . . . but the Carroll doctrine does not declare a field day for the police in searching automobiles. Automobile or no automobile, there must be probable cause for the search.” 413 U.S. at 269, 93 S.Ct. at 2537. Accordingly, this warrantless search is legal only if the seizing officer had probable cause and the car’s mobility created an exigent circumstance. Probable cause to search exists when the facts and circumstances warrant a reasonably prudent man to be lieve that" }, { "docid": "22657980", "title": "", "text": "legal contemporaneous search under Carroll, they may also seize the car, take it to the police station, and search it there. But even granting that. the police had probable cause to search the car, the application of the Carroll case to these facts would extend it far beyond its original rationale. Carroll did indeed hold that “contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant,” provided that “the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes has contraband liquor therein which is being illegally transported.” • Such searches had been explicitly authorized by Congress, and, as we have pointed out elsewhere, in the conditions of the time “[a]n automobile . . . was an almost indispensable instrumentality in large-scale violation of the National Prohibition Act, and the car itself therefore was treated somewhat as an offender and became contraband.” In two later cases, each involving an occupied automobile stopped on the open highway and searched for contra band liquor, the Court followed and reaffirmed Carroll. And last Term in Chambers, supra, we did so again. The underlying rationale of Carroll and of all the cases that have followed it is that'there is “a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or auto mobile, for contraband goods, where it is not practicable. to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” 267 U. S., at 153. (Emphasis supplied.) As we said in Chambers, supra, at 51, “exigent circumstances” justify the warrantless search of “an automobile stopped on the highway,” where there is probable cause, because the car is “movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained.” “[T]he opportunity to search is fleeting . . . .” (Emphasis" }, { "docid": "22640297", "title": "", "text": "was an automobile. It is true, of course, that a line of decisions, beginning with Carroll v. United States, 267 U. S. 132, have recognized a so-called “automobile exception” to the constitutional requirement of a warrant. But “[t]he word 'automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears.” Coolidge, supra, at 461-462. Rather, the Carroll doctrine simply recognizes the obvious — that a moving automobile on the open road presents a situation “where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” Carroll, supra, at 153. See also Almeida-Sanchez v. United States, 413 U. S. 266, 269. Where there is no reasonable likelihood that the automobile would or could be moved, the Carroll doctrine is simply inapplicable. See, e. g., Coolidge, supra; Preston v. United States, 376 U. S. 364. The facts of this case make clear beyond peradventure that the “automobile exception” is not available to uphold the warrantless seizure of the respondent’s car. Well before the time that the automobile was seized, the respondent — and the keys to his car — were securely within police custody. There was thus absolutely no likelihood that the respondent could have either moved the car or meddled with it during the time necessary to obtain a search warrant. And there was no realistic possibility that anyone else was in a position to do so either. I am at a loss, therefore, to understand the plurality opinion’s conclusion, ante, at 595, that there was a “potential for the car’s removal” during the period immediately preceding the car’s seizure. The facts of record can only support a diametrically opposite conclusion. Finally, the plurality opinion suggests that other “exigent circumstances” might have excused the failure of the police to procure a warrant. The opinion nowhere states what these mystical exigencies might have been, and counsel for the petitioner has not been so inventive as to suggest any. Since the authorities had taken care to procure an arrest warrant even" }, { "docid": "1599935", "title": "", "text": "this is not enough to justify the search. Coolidge v. New Hampshire, supra, 403 U.S. at 473-484, 91 S.Ct. 2022. See United States v. Cohn, 472 F.2d 290 (9th Cir. 1973). Whether the exigencies of the situation were sufficient to allow a warrantless search depends upon the totality of the circumstances. The parties are concerned with the applicability of Coolidge v. New Hampshire, supra. However, we also note that the Court there found that “there was no ‘exigent circumstance’ to justify [the police’s] failure to obtain a warrant” because “the police knew of the presence of the automobile and planned all along to seize it.” 403 U.S. at 478, 91 S.Ct. at 2044. Of interest is that the Court noted that the car was not being used for an illegal purpose, that the opportunity to search was hardly fleeting, and that the objects sought “were neither stolen nor contraband nor dangerous.” 403 U.S. at 460, 91 S.Ct. at 2035. Consequently the exigencies of Coolidge differ significantly from those in this case, and the solution here must turn on these unique facts. A warrantless search, albeit with probable cause, of a vehicle may be valid while a similar search in a home may be impermissible. See Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). The basis of this distinction is the practical fact that evidence may more easily disappear during the time necessary to secure a warrant. The Supreme Court has recognized that there is “. . . a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” 267 U.S. at 153, 45 S.Ct. at 285. See also, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Scher v. United States, 305" }, { "docid": "12803452", "title": "", "text": "the block and then parked it in front of the apartment building. At this point, appellants Allen, Upthegrove, and Dunn alighted from the automobile and entered the building. While they were observed ascending the stairs from the first to the second floor, it was not possible to observe them actually entering Hessling’s apartment. Appellants and Michael Sturgeon stayed in the apartment building for about 15 or 20 minutes. Upon leaving the building they all got back into appellant Allen’s automobile and proceeded toward the Ohio River which was about fourteen blocks away. Allen’s automobile was stopped and searched by federal and state officers a few blocks from the apartment building. A plastic bag containing phencyclidine was removed from the automobile and given to Officer Handorf. At this point, Handorf arrested the appellants and searched them. Appellants Upthegrove and Dunn also had phencyclidine in their possession. All of this phencyclidine was introduced into evidence at trial. Officer Handorf did not have any arrest warrants for the appellants, nor did he have a search warrant for appellant Allen’s automobile. Handorf was questioned as to why he had not obtained a search warrant for the automobile and the following colloquy occurred: Q. So all you knew was that there was going to be a delivery and you did not know the type of car or number of people, is that correct? A. That’s correct. Q. What was the reason that you did not, after you saw this automobile and the people go in and come out, what was the reason you did not go and get a search warrant for that car at that time? A. The time element involved and also we didn’t think that we really had enough probable cause to put on paper. Yet we had enough probable cause and prudence to stop that car and check it. They had made a couple of what we considered overt acts. Q. What overt acts were those? A. Well, one, the correct time of day — our information was that the delivery would be made at 1:00 p. m. and they arrived" }, { "docid": "12803458", "title": "", "text": "to infer that there was some form of communication between Sturgeon and the occupant of that apartment. Sturgeon’s entry into the apartment building was followed thereafter by that of the appellants. While Handorf could not see precisely where appellants went, he was able to ascertain that they went beyond the basement- and first floor, further narrowing the possibilities and increasing the likelihood that they went to Hess-ling’s apartment. Handorf’s expectation that the appellants would not stay in the building very long was confirmed by their departure after 15 or 20 minutes. Further, we do not believe it was unreasonable if Officer Handorf took into account the make of the automobile, its license plates, the fact that it circled the block once before stopping and, finally, the fact that when the automobile departed, it was headed in the direction of the Ohio River, some 14 blocks away and hence out of Kentucky. The foregoing facts show that probable cause existed thereby justifying the stop and search of appellant Allen’s automobile. Immediately upon seizure of the phencyclidine from the automobile, the appellants were arrested and searched. Thus, the phencyclidine seized from the persons of Upthegrove and Dunn was obtained during the course of a valid search incident to a lawful arrest. United States,v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed. 2d 427 (1973). Accordingly, the trial judge properly denied appellants’ motion to suppress. DOUBLE JEOPARDY Appellants Upthegrove and Dunn further claim that under the facts in this case, they could not be convicted of both count I and count II because to do so amounts to “former jeopardy”. This issue, however, does not assume constitutional dimensions, see Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L. Ed.2d 1405 (1958), but rather involves a question of whether their conviction of unlawful possession under count' I merged with their conviction of possession with intent to distribute under count II. Count I charges that on or about the day in question, appellants Upthegrove and Dunn “unlawfully, knowingly and intentionally possessed a certain quantity of phencyclidine, a controlled substance under Schedule" }, { "docid": "12803455", "title": "", "text": "280, 69 L.Ed. 543 (1925). Indeed the identity of the automobile was not discovered until it drove up, and it was halted only minutes later as it drove away, headed in the direction of the Ohio River and another state. This was obviously a situation “where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” Carroll v. United States, supra, at 153, 45 S.Ct. at 285. The Carroll line of cases, however, does not declare a field day for the police in searching automobiles, because “automobile or no automobile, there must be probable cause for the search”. Almeida-Sanchez v. United States, 413 U.S. 266, 269, 93 S.Ct. 2535, 2538, 37 L.Ed.2d 596 (1973). Probable cause exists where “the facts and circumstances within [the arresting officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that” an offense has been or is being committed. Carroll v. United States, supra., 267 U.S. at 162, 45 S.Ct. at 228. We recognize that “in dealing with probable cause, ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949). Appellants urge that while there may have been sufficient probable cause to support the search warrant which had been issued for the apartment, there was insufficient probable cause to support the search of the vehicle and persons of appellants, with or without a warrant. It is true that the stake-out of 1409 Greenup Street commenced with no description of either the automobile or the person or persons who would be making the drug delivery. Were this the only evidence, and had the officers merely stopped and searched anyone who drove up to the apartment, we would agree. The knowledge which formed the basis" }, { "docid": "22683622", "title": "", "text": "structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” 267 U. S., at 153. It therefore held that a warrantless search of an automobile, based upon probable cause to believe that the vehicle contained evidence of crime in the light of an exigency arising out of the likely disappearance of the vehicle, did not contravene the Warrant Clause of the Fourth Amendment. See id., at 158-159. The Court refined the exigency requirement in Chambers v. Maroney, 399 U. S. 42 (1970), when it held that the existence of exigent circumstances was to be determined at the time the automobile is seized. The car search at issue in Chambers took place at the police station, where the vehicle was immobilized, some time after the driver had been arrested. Given probable cause and exigent circumstances at the time the vehicle was first stopped, the Court held that the later warrantless search at the station passed constitutional muster. The validity of the later search derived from the ruling in Carroll that an immediate search without a warrant at the moment of seizure would have been permissible. See Chambers, 399 U. S., at 51. The Court reasoned in Chambers that the police could search later whenever they could have searched earlier, had they so chosen. Id., at 51-52. Following Chambers, if the police have probable cause to justify a warrantless seizure of an automobile on a public roadway, they may conduct either an immediate or a delayed search of the vehicle. In United States v. Ross, 456 U. S. 798, decided in 1982, we held that a warrantless search of an automobile under the CaiToll doctrine could include a search of a container or package found inside the car when such a search was supported by probable cause. The warrantless search of Ross’ car occurred after an" }, { "docid": "3718170", "title": "", "text": "United States, 275 U. S. 310, 48 S. Ct. 137, 72 L. Ed. 293, 52 A. L. R. 1381, the defendants were arrested near the Canadian border, their automobile searched without a warrant, and intoxicating liquor found therein was seized. The court found that a case of “probable cause” was not made out and that, therefore, the admission in evidence of the seized liquor in ai prosecution under the National Prohibition Act (27 USCA) violated the Fourth and Fifth Amendments. In Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790, the court held, Justices MeReynolds and Sutherland dissenting, that probable cause existed where prohibition officers, searched an automobile upon the faith of information previously obtained by them that the ear and its occupants, identified by the officers, were engaged in “bootlegging.” But the court emphatically pointed out that a search was not justified in the absence of probable cause, saying at pages 153, 154 of 267 U. S., 45 S. Ct. 280, 285: “We have made a somewhat extended reference to these statutes to show that the guaránty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the government, as recognizing a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship, motor boat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. [Italics mine.] “Having thus established that contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant, we come now to consider under what circumstances such search may be made. “It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor, and thus subject all persons lawfully using the" }, { "docid": "12803454", "title": "", "text": "at the immediate time of 1:20 p. m., they dropped off one person who turned around a couple of times, Michael Sturgeon, looked around, looked up to the third floor, made either a gesture or something to the third floor and then the ear came around the block, parked and everyone alighted. We knew once they were in the house the sale wouldn’t go down. They wouldn’t stay in very long. They stayed about fifteen or twenty minutes, all of them got back in the ear and headed back towards the Ohio River. Upon the foregoing facts Judge Swinford overruled appellants’ motion to suppress both the evidence seized from the automobile and that seized from the persons of Upthegrove and Dunn. We agree with this ruling because on the record before us probable cause existed for the search and exigent circumstances excused the failure to obtain a search warrant for the automobile. We have no difficulty in finding that exigent circumstances existed within the meaning of Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Indeed the identity of the automobile was not discovered until it drove up, and it was halted only minutes later as it drove away, headed in the direction of the Ohio River and another state. This was obviously a situation “where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” Carroll v. United States, supra, at 153, 45 S.Ct. at 285. The Carroll line of cases, however, does not declare a field day for the police in searching automobiles, because “automobile or no automobile, there must be probable cause for the search”. Almeida-Sanchez v. United States, 413 U.S. 266, 269, 93 S.Ct. 2535, 2538, 37 L.Ed.2d 596 (1973). Probable cause exists where “the facts and circumstances within [the arresting officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that” an offense has been or is being" }, { "docid": "13022879", "title": "", "text": "and a search of a ship, motor boat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. * «• -x- * * * The measure of legality of such a seizure is, therefore, that the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes has contraband liquor therein which is being illegally transported. 267 U.S. at 153, 155-56, 45 S.Ct. at 285. In three later cases, Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629 (1931); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) and Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), each involving an occupied automobile stopped on the open highway, the Court reaffirmed its decision in Carroll. As the Court stated in Chambers v. Maroney, supra, at page 51, 90 S.Ct. at page 1981, “exigent circumstances” justify the warrantless search of “an automobile stopped on the highway”, where there is probable cause, because “the car is movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained.” The Court in Chambers held that where the police may stop and search an automobile under Carroll, they may also seize it and search it later at the police station. Subsequent to Chambers, the Court decided the case of Coolidge v. New Hampshire, supra, distinguishing Carroll and Chambers on the facts, and holding that a warrant was required for the car search therein. The “result in Coolidge was merely the fruition of the warning in Chambers that exigent circumstances do not in every instance accompany the search of an automobile.” United States v. Kulp, 365 F.Supp. 747, 755 (E.D.Pa.1973). We are of the opinion that the facts of this case are governed by Carroll and Chambers and not by Coolidge. The warrant-less search in this case was not violative of the" }, { "docid": "15036881", "title": "", "text": "followed, on the basis of marijuana found in the motor home. A warrantless search is “per se unreasonable, unless the police can show that it falls within one of a carefully defined set of exceptions based on the presence of ‘exigent’ circumstances.” Coolidge v. New Hampshire, 1971, 403 U.S. 443, 474-475, 91 S.Ct. 2022, 2042, 29 L.Ed.2d 564. An exception exists as to the search of a moving vehicle, when probable cause exists for such a search. The seminal case as to warrantless searches of vehicles is Carroll v. United States, 1925, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 453, where the Court held: “ . . . that the guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the government, as recognizing a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship, motor boat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. “Having thus established that contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant, we come now to consider under what circumstances such search may be made. * * * * * * The measure of legality of such a seizure is . that the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes had contraband liquor therein which is being illegally transported.” 267 U.S. at 153, 155-156, 45 S.Ct. at 285-286. See Almeida-Sanchez v. United States, 1973, 413 U.S. 266, 269, 93 S.Ct. 2535, 2537, 37 L.Ed.2d 596; Chambers v. Maroney, 1970, 399 U.S. 42, 49, 90 S.Ct. 1975,1980, 26 L.Ed.2d 419; Potter v. United States, 5 Cir. 1966, 362 F.2d 493, 497. Thus, to justify the stop and search without a warrant of the vehicle driven" }, { "docid": "50529", "title": "", "text": "fifteen minutes had transpired between Crystal Broo-kins’ dash from the scene of arrest and the discovery of the vehicle. Reviewing the relevant “historical facts,” none of which is in dispute, we conclude that the district court erred when it found that probable cause no longer obtained at the time of seizure. B. The district court next proceeded to analyze whether, assuming that probable cause had existed, a warrantless search would have been constitutionally permissible pursuant to the “automobile exception,” which was established under Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), and its progeny. The district court interpreted the Carroll line of cases to require a showing of exigency, notwithstanding recent Supreme Court precedent specifically disavowing the existence of any such separate requirement. The district court found in Carroll a requirement that the subject automobile be, in a somewhat phenomenological sense, “readily mobile” to justify a warrantless search. Applying this formulation of the rule, the district court concluded that on the facts presented — viz. the ease with which the officers could have blocked Brookins’ automobile and the fact that the Ford Expedition was unoccupied when discovered by the officers — a warrant was required to search and seize the automobile because it was not “readily mobile.” On appeal, Brookins proposes an interpretation of the “automobile exception,” which he grounds largely in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). In Coolidge, the Supreme Court, by the opinion of a four-justice plurality, declined to apply Carroll under circumstances evincing no exigency whatsoever. Specifically, the defendant’s automobile was parked in his own driveway and contained no contraband. Additionally, the police had developed probable cause well in advance of the warrantless search. Brookins maintains that Coolidge represents the sole Supreme Court decision to address “head-on” the warrantless search of an automobile at a private residence. Based upon the facts of Coolidge, Brookins would posit a bright-line rule, whereby the automobile exception may never apply when a vehicle is stationed on private, residential property. Brookins seeks additional support for this theory" }, { "docid": "11654149", "title": "", "text": "which itself was carefully reaffirmed in Almeida-Sanchez: “It is settled, of course, that a stop and search of a moving automobile can be made without a warrant Carroll v. United States, 267 U.S. 132 [45 S.Ct. 280, 69 L.Ed. 543]. . . . The Court [in Carroll] recognized that a moving automobile on the open road presents a situation ‘where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.’ Id., at 153 [45 S.Ct., at 285]. . . . but the Carroll doctrine does not declare a field day for the police in searching automobiles. Automobile or no automobile, there must be probable cause for the search.” 413 U.S. at 269, 93 S.Ct. at 2537. Accordingly, this warrantless search is legal only if the seizing officer had probable cause and the car’s mobility created an exigent circumstance. Probable cause to search exists when the facts and circumstances warrant a reasonably prudent man to be lieve that the vehicle contains contraband. Williams v. United States, supra, 404 F.2d at 494. Information from a reliable informant that is corroborated by other matters within the participating officer’s knowledge' can constitute sufficient probable cause to justify an arrest or search. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); United States v. Summerville, 477 F.2d 393 (5th Cir. 1973). And this court has also held that “probable cause can rest upon the collective knowledge of the police, rather than solely on that of the officer who actually makes the arrest,” when there is “some degree of communication between the two.” Moreno-Vallejo v. United States, 414 F.2d 901, 904 (5th Cir. 1969), cert. denied, 400 U.S. 841, 91 S.Ct. 82, 27 L.Ed.2d 76 (1970). The relevant facts begin with a telephone call from the informant, not identified by name on this record, to drug agent Gerber. Gerber testified that shortly after noon the informant telephoned him that two Latin men, one nicknamed “Coco,” were in possession of cocaine and were traveling" }, { "docid": "20341431", "title": "", "text": "has long recognized in the case of automobiles moving on the public highway: [T]he Fourth Amendment has been construed, practically since the beginning of the government, as recognizing a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship, motor boat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. Carroll v. United States, 267 U.S. 132 at 153, 45 S.Ct. 280 at 285, 69 L.Ed. 543 at 551 (1925). The court in Carroll recognized the dangers inherent in authorizing the warrantless stopping and searching of vehicles traveling on the public highway and held that such stops and searches were not to be sanctioned unless those authorized to make the stops had “probable cause for believing that [the] vehicles are carrying contraband or illegal merchandise.” 267 U.S. at 154, 45 S.Ct. at 285, 69 L.Ed. at 552. The exception to the warrant requirement which was here noted by the Carroll court fits precisely the situation which is now before me. Other than as noted in the preceding sections of this Opinion, the circumstances were exigent and the officers had the requisite probable cause. The stops and searches were valid. One further question in this area remains for decision. Defendants Haseltine and Wagoner also challenge the warrantless search at police headquarters of suitcases seized from the vehicle in which they had been arrested. They argue that once the suitcases had been seized and taken into police custody, no exigent circumstances existed which would justify the agents in opening and searching through the suitcases without first obtaining judicial approval. They thus seek to distinguish the invasion of their privacy effected by the seizure of these suitcases from that occasioned by the subsequent search of the suitcases’ contents. Although such a distinction has some appeal, I am mindful that in United States v. Valen, 479 F.2d" }, { "docid": "2347067", "title": "", "text": "that the vehicle contains contraband or the fruits or instrumentalities of crime, and exigent circumstances must exist which would make the securing of a warrant impracticable. Carroll v. United States, supra; Coolidge v. New Hampshire, supra. Undoubtedly, both elements must exist for the exception to apply. As stated in Coolidge v. New Hampshire, 403 U.S. at 468, 91 S.Ct. at 2039, no amount of probable cause can justify a warrantless search and seizure absent exigent circumstances. Furthermore, as noted by the Supreme Court in Almeida-Sanchez v. United States, 413 U.S. 266, 269, 93 S.Ct. 2535, 2537-38, 37 L.Ed.2d 596 (1973), “the Carroll doctrine does not declare a field day for police in searching automobiles. Automobile or no automobile, there must be probable cause for the search.” In the present matter, both elements required under the automobile exception are present. The Court has previously found that probable cause existed under the facts and circumstances of this case. What remains to be determined, therefore, is whether the circumstances attending the arrest and search displayed the required exigent circumstances needed for the search and seizure to fall within the automobile exception to the rule forbidding warrantless searches. On this aspect of the matter, the Court could simply refer to the finding of exigency made with regard to its prior discussion as to the validity of the search pursuant to military regulations. However, due to the uncertainty and confusion of the present state of the law with regard to what constitutes exigent circumstances under the automobile exception, a more detailed analysis is indicated. The Supreme Court in Coolidge v. New Hampshire, supra, noted: As we said in Chambers, supra [399 U.S.] at 51, 90 S.Ct., at 1981, ‘exigent circumstances’ justify the warrantless search of ‘an automobile stopped on the highway,’ where there is probable cause, because the car is ‘movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained.’ ‘[T]he opportunity to search is fleeting * * (Emphasis supplied by the plurality in Coolidge) 403 U.S. at 460, 91 S.Ct. at 2035. As discussed" }, { "docid": "2347066", "title": "", "text": "it is also clear that the Supreme Court, in terms of the circumstances justifying a warrantless search, has long distinguished between an automobile and a home or office. Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 285, 69 L.Ed. 453 (1925); Chambers v. Maroney, 399 U.S. 42, 48, 90 S.Ct. 1975, 1979, 26 L.Ed.2d 419 (1970), reh. den., 400 U.S. 856, 91 S.Ct. 23, 35 L.Ed.2d 297 (1970). This distinction is premised on the rationale of Carroll that there is: a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship, motor boat, wagon or automobile for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. 267 U.S. at 153, 45 S.Ct. at 285. For the automobile exception to apply, the arresting officer must have probable cause to believe that the vehicle contains contraband or the fruits or instrumentalities of crime, and exigent circumstances must exist which would make the securing of a warrant impracticable. Carroll v. United States, supra; Coolidge v. New Hampshire, supra. Undoubtedly, both elements must exist for the exception to apply. As stated in Coolidge v. New Hampshire, 403 U.S. at 468, 91 S.Ct. at 2039, no amount of probable cause can justify a warrantless search and seizure absent exigent circumstances. Furthermore, as noted by the Supreme Court in Almeida-Sanchez v. United States, 413 U.S. 266, 269, 93 S.Ct. 2535, 2537-38, 37 L.Ed.2d 596 (1973), “the Carroll doctrine does not declare a field day for police in searching automobiles. Automobile or no automobile, there must be probable cause for the search.” In the present matter, both elements required under the automobile exception are present. The Court has previously found that probable cause existed under the facts and circumstances of this case. What remains to be determined, therefore, is whether the circumstances attending the arrest and search displayed the required exigent" }, { "docid": "12803451", "title": "", "text": "apartment building was “staked-out” by approximately ten officers. Officer Handorf knew that the delivery of phencyclidine would be made by automobile, but the confidential informer did not provide Handorf with any description of the automobile or the person or persons who would be making the delivery. Handorf also knew that the delivery would not be completed because the person in Hessling’s apartment who was supposed to receive the phencycli-dine was not there. Thus, Handorf expected that whoever arrived at the designated'time would probably depart after a short stay in the building, still in possession of the phencyclidine. Around 1 p. m. Handorf saw someone continually looking out the third floor window of the apartment building at 1409 Greenup. Shortly thereafter, a white Mercedes Benz, bearing Ohio license plates and driven by appellant Allen, arrived at 1409 Greenup. Appellant dropped Michael Sturgeon off in front of the building. Handorf stated that Sturgeon looked up to the third floor and made “either a gesture or something” and then entered the building. Appellant Allen drove his automobile around the block and then parked it in front of the apartment building. At this point, appellants Allen, Upthegrove, and Dunn alighted from the automobile and entered the building. While they were observed ascending the stairs from the first to the second floor, it was not possible to observe them actually entering Hessling’s apartment. Appellants and Michael Sturgeon stayed in the apartment building for about 15 or 20 minutes. Upon leaving the building they all got back into appellant Allen’s automobile and proceeded toward the Ohio River which was about fourteen blocks away. Allen’s automobile was stopped and searched by federal and state officers a few blocks from the apartment building. A plastic bag containing phencyclidine was removed from the automobile and given to Officer Handorf. At this point, Handorf arrested the appellants and searched them. Appellants Upthegrove and Dunn also had phencyclidine in their possession. All of this phencyclidine was introduced into evidence at trial. Officer Handorf did not have any arrest warrants for the appellants, nor did he have a search warrant for appellant" } ]

[ { "docid": "16855276", "title": "", "text": "co-existent.” In response to that contention Judge Clark, speaking for the Circuit Court of Appeals, said— “ * * * In legal jargon a change of ownership, terminating rights and other relations in one entity and creating them in another, is the essence of ‘transfer,’ * * Page 416 of 117 F.2d. Whether a transfer of realty should be taxable as well as a transfer of property consisting of securities is not for the court to say. However, a mere transfer or change of legal title is not a taxable transaction under Schedule A-8 which, as it now stands, expressly confines taxable transfers to “realty sold”. In the transaction now under consideration the elements characteristic of a “sale” are lacking; there is no agreement to sell; there is no deed containing the description of the realty. The usual bargaining leading up to and culminating in a sale and fixing the value of the property are absent. The change of title results from the filing of. the Certificate of Consolidation; it was a form of transfer, but not a sale. In Cortland Specialty Co. v. Commissioner of Internal Revenue, 2 Cir., 60 F.2d 937, it is said — “Reorganization, merger, and consolidation are words indicating corporate readjustments of existing interests. They all differ fundamentally from a sale where the vendor corporation parts with its interest for cash and receives nothing more.” Page 939. In New York Central R. Co. v. Commissioner of Internal Revenue, 2 Cir., 79 F.2d 247, certiorari denied Helvering v. New York Central R. Co., 296 U.S. 653, 56 S.Ct. 370, 80 L.Ed. 465, the court said —“The consolidated corporation does not succeed to the rights and liabilities * * * as a purchaser but as a successor by operation of law.” Page 249 of 79 F.2d. If, therefore, Northern acquired title to the realty otherwise than as a purchaser, it is evident that this change of title did involve a sale, for there can be no sale unless there is a purchaser. In my opinion there is no conveyance of “realty sold” taxable under Schedule A(8) where" } ]

[ { "docid": "20359564", "title": "", "text": "that the case fell within the rationale of Kennedy. Id. at 909. FDIC v. Grella, 553 F.2d 258, 260 (2d Cir.1977), involved a lease of a building for a branch bank of Frankiin National Bank (“Franklin”). On October 8,1974 Franklin— the lessee — was declared insolvent and the FDIC was appointed as its receiver. Id. The FDIC entered into a P & A transaction with another bank. Franklin’s lease provided the landlord with the option to terminate at any time after the tenant became bankrupt or committed an insolvent act, so long as the landlord provided five days’ written notice. Six months after Franklin was placed into receivership, the landlord attempted to terminate the lease. The question presented was whether the FDIC had standing to sue for a declaratory judgment that the attempted termination was void. The FDIC sought to establish standing on the ground that it could be sued for future rentals. The Second Circuit disagreed, reasoning that “the claim of a lessor ... for excess of rents reserved over rental value upon subsequent re-entry of the landlord is not a claim that arose or became fixed until after insolvency and is unallowable against the receiver.” Id. at 262 (citing Kennedy, 84 F.2d at 597). In Executive Office Ctrs., Inc. v. FDIC, 439 F.Supp. 828 (E.D.La.1977), aff'd on the basis of the district court’s opinion, 575 F.2d 879 (5th Cir.1978) (per curiam) (table), a lessor sued for recovery of accelerated rent, naming as defendants the FDIC, in its capacity as receiver of a failed bank, the failed bank itself, and the successor bank that acquired certain assets and liabilities pursuant to a P & A transaction. Id. The district court held the claim was barred against the FDIC as receiver and, in turn, against the assuming bank, because the lessor’s claim did not accrue and become fixed until after the failed bank was declared insolvent. Id. at 829. The lease provided that prior to the date the lessor could assert his rights under the lease, the lessee had a right to notice and to cure the default. Id. The" }, { "docid": "22864291", "title": "", "text": "nor claimed any ownership interest in the funds which eventually constituted the escrow fund, but merely held the money on behalf of the PSSB until such time as the interest payments were due the letter of credit investors. As previously noted, the plan then called for SFC to transfer the funds to the PSSB which, as obligor of the letters of credit, would make the interest payments to investors. SFC’s claim on this appeal that the Bank acted merely as a “conduit” through which SFC made interest payments to the investors is absolutely contrary to the evidence. It is well settled that the rights and liabilities of a bank and the bank’s debtors and creditors are fixed at the declaration of the bank’s insolvency. First Empire Bank v. FDIC, 572 F.2d 1361, 1367-68 (9th Cir.), cert. denied 439 U.S. 919, 99 S.Ct. 293, 58 L.Ed.2d 265 (1978); FDIC v. Grella, 553 F.2d 258, 262 (2d Cir.1977); Kennedy v. Boston-Continental National Bank, 84 F.2d 592, 597 (1st Cir.1936), cert. denied 300 U.S. 684, 57 S.Ct. 667, 81 L.Ed. 887 (1937). SFC’s attempt to rely on events subsequent to the Bank’s closing in support of its claim of ownership to the escrow fund must fail since the rights of the parties were frozen on April 18, 1970, when the Bank’s doors were shut to business. In effect, the $326,200 held by SFC constituted an interest escrow account in the hands of SFC for the benefit of the PSSB and the letter of credit purchasers. When the Bank ceased operations, the purpose of this “escrow account” lapsed and the money should have reverted to the depositor of the funds, the PSSB. SFC’s hands were further soiled when, shortly after the Bank’s closing, SFC declined to return the funds to their rightful owner absent a release from liability. We also concur with the district court in its alternative holding that SFC held the disputed funds as a constructive trustee for PSSB. SFC’s contention that a constructive trust may be established only where the party against whom the trust is imposed has acquired the disputed" }, { "docid": "20359561", "title": "", "text": "that a claim must accrue on or before insolvency, the First Circuit reversed the district court’s holding that the covenant in question provided for a fixed and absolutely owing liability at insolvency. Id. at 597. The lease continued in existence and, at insolvency, no damage claim for future rent existed. In order to terminate the lease and create a damage claim, the lessor was obligated to provide notice and reenter the premises. Neither condition was met until well after the bank failed. When the landlord undertook these actions, it created a new contract for indemnity. This new contractual obligation arose post-insolvency, and thus violated the requirement of ratability because no claim existed on or before insolvency. Id. Kennedy turned on the existence of a new contract to hold the claim was not provable. This explains the panel majority’s observation that upon a declaration of insolvency; a claim for liquidated damages would arise and be unconditionally due and owing “[h]ad the lease contained a covenant that insolvency shall be a breach of the lease and thereupon, without any further action by the lessor, the lease shall terminate and the lessor be entitled forthwith to damages measured, as provided in the covenant of the lease for liquidated damages.” Id. In Argonaut Sav. & Loan Ass’n v. FDIC, 392 F.2d 195, 196 (9th Cir.), cert. denied, 393 U.S. 839, 89 S.Ct. 116, 21 L.Ed.2d 110 (1968), the FDIC disaffirmed an insolvent national bank’s real property lease. The bank was declared insolvent on January 22,1965. Seven months later, on July 28, 1965, the FDIC disaffirmed the lease. On December 14, 1965 the lessor’s assignee sued to recover on the basis of one of three optional remedies that accrued upon appointment of a receiver. The Ninth Circuit cited Kennedy in denying future rent damages. Id. at 197. The court held that because the plaintiff did not attempt to exercise the option under the disaffirmed lease until well after the receivership, his claim did not exist upon the declaration of insolvency. Argonaut is factually similar to Kennedy in that the lessor did not purport to terminate" }, { "docid": "20359611", "title": "", "text": "any portion of an undersecured creditor’s debt that is not collateralized is subject to the requirement of ratability. . The FDIC maintains that the Interfirst Bank test is inapplicable in the case of a lease entered into by a national bank. It argues that a common law rule, derived from Kennedy v. Boston-Continental Nat’l Bank, 84 F.2d 592 (1st Cir. 1936), cert. dismissed, 300 U.S. 684, 57 S.Ct. 667, 81 L.Ed. 887 (1937), and its progeny, controls the FF & E transaction. As the court explains below, the test adopted by the Fifth Circuit in Interfirst Bank incorporates the Kennedy line of cases. The court rejects the FDIC's contention that a different provability test applies. . The FDIC argues that Kennedy was addressing bankruptcy law in this respect. The court disagrees. Although the panel stated in this passage that a claim would arise and “be provable in bankruptcy,” and drew from bankruptcy cases as precedent, its decision was made in the context of the NBA. See, e.g., Argonaut Sav. & Loan Ass'n v. FDIC, 392 F.2d 195, 197 (9th Cir.) (construing Kennedy as authority interpreting § 194), cert. denied, 393 U.S. 839, 89 S.Ct. 116, 21 L.Ed.2d 110 (1968). . The per curiam affirmance of the Fifth Circuit is reported in a table at 575 F.2d 879. The panel opinion states in full: \"We affirm the judgment below on the basis of Judge Schwartz’s opinion, E.D.La., 1977, 439 F.Supp. 828. AFFIRMED.” . 12 U.S.C. § 91 provides, in relevant part: All transfers of notes, bonds, bills ... all deposits ... for [the national bank’s] use; or for the use of any of its ... creditors; and all payments of money either made after the commission of an act of insolvency or in contemplation thereof, made with a view to prevent the application of its assets in the manner prescribed by this chapter or with a view to the preference of one creditor to another ... shall be utterly null and void____ . The Goldberg panel recognized that a movant may satisfy the intent requirement when the first two prongs are" }, { "docid": "20359558", "title": "", "text": "bank’s insolvency,” 777 F.2d at 1094, permits the harvest to occur after the bank’s failure, so long as the seed of the claim germinates pre-insolvency, and the right to collect the crop post-insolvency is triggered by a specified event agreed upon prior to the bank’s failure. The requirement that a claim exist before a bank’s insolvency should not typically be the subject of serious dispute between a creditor and the FDIC. At insolvency, the bank’s operations cease, and the FDIC-Receiver, and thereafter a bridge bank or successor bank, takes over. A creditor’s claim against the receivership estate of a failed bank is by its nature one that exists before the bank’s insolvency. Otherwise, the claim would be against the successor entity itself as a result of that party’s own conduct. 2 The other component of Interfirst Bank’s first element — the requirement that a claim does not depend on any new contractual obligations arising after insolvency— must be the subject of a more extended analysis. The “new contractual obligations” prohibition is derived from a line of cases in which courts have held claims for lost future rent to be unprovable when some type of post-insolvency conduct is necessary to give rise to the claim. The claim is contingent because it does not accrue on or before insolvency. The FDIC maintains that these decisions stand for the proposition that a lessor can under no circumstances recover future rents, even pursuant to an ipso facto clause. The FDIC also contends the three-prong test is inapplicable when determining the provability of a lessor’s claim and claims involving lease terminations. As will be seen, the tripartite Inter-first Bank standard incorporates the holdings of the lease cases on which the FDIC relies, and is properly applied in the present case. Further, the lease decisions do not preclude claims such as those made by Capital and Prudential because their claims are not dependent upon new contractual obligations. In Kennedy v. Boston-Continental Nat’l Bank, 84 F.2d 592, 595 (1st Cir.1936), cert. dismissed, 300 U.S. 684, 57 S.Ct. 667, 81 L.Ed. 887 (1937), the First Circuit addressed whether" }, { "docid": "11098821", "title": "", "text": "(2) the fees were not fixed and certain at the time the suit was filed against the FDIC. But the notion of provability is not the same as the rule of ratable distribution. “Though related concepts, whether a claim is provable under section 194, and whether a distribution is ‘ratable’ represent two entirely different in quiries.” See Citizens State Bank of Lometa v. FDIC, 946 F.2d 408, 413 (5th Cir.1991). The existence of a collateral fund, while perhaps relevant to ratable distribution, is not relevant to determining provability; and the FDIC’s argument that the attorneys’ fees must have been absolute, fixed, due and owing for purposes of ratable distribution to be “provable” is not correct. Id. (provability of claims is not equated to the absolute, fixed, due-and-owing language which applies to the concept of a “ratable distribution”). Even if the claims for attorneys’ fees here were “contingent,” which they are not, a claim is provable if its “worth or amount can be determined by recognized methods of computation.” First Empire I, 572 F.2d at 1369. The lodestar approach to calculation of attorneys’ fees is a recognized method of computation. Nevertheless the attorneys’ fees award requires modification. The rule of ratable distribution “requires that dividends be declared proportionately upon the amount of claims as they stand on the date of insolvency.” Citizens State Bank, 946 F.2d at 415. The amount of the claim that has accrued at the time of insolvency is the basis for apportionment of dividends. See Kennedy v. Boston-Continental Nat’l Bank, 84 F.2d 592, 597 (1st Cir.1936) (“The amount of the claim may be later established, but, when established, it must be the amount due and owing at the time of the declaration of insolvency, as of which time it is entitled, with the claims of the other creditors, to a ratable distribution of the assets of the bank.”); see also White, 111 U.S. at 787, 4 S.Ct. at 687 (“It was clearly right ... to ascertain from the judgment how much was due on this claim at the date of the insolvency, and make the distribution accordingly.”)." }, { "docid": "20359610", "title": "", "text": "an August 24, 1994 opinion, the court dismissed Prudential’s claim against the FDIC for judicial foreclosure. . Capital's declaratory judgment action against TCB requests relief identical to all items except one of its declaratory judgment action against FDIC-Corporate. . Capital’s declaratory judgment action against Prudential seeks identical relief to that sought against FDIC-Corporate. . In this opinion, the court decides parts or all of four of the six pending motions. A motion to strike, and objections to summary judgment evidence, have also been filed. These are denied as moot. In separate orders filed today, the court denies without prejudice Bank One’s motion for partial summary judgment against Prudential and TCB, the portion of Prudential's motion directed against Bank One, and TCB’s motion for partial summary judgment against Capital. . TCB contends, on the basis of Ticonic, that a secured creditor need not meet the provability requirement. The court disagrees. Ticonic rests on concepts of ratability, not provability. A secured creditor may recover more than an unsecured creditor, but he must have a provable claim. Moreover, any portion of an undersecured creditor’s debt that is not collateralized is subject to the requirement of ratability. . The FDIC maintains that the Interfirst Bank test is inapplicable in the case of a lease entered into by a national bank. It argues that a common law rule, derived from Kennedy v. Boston-Continental Nat’l Bank, 84 F.2d 592 (1st Cir. 1936), cert. dismissed, 300 U.S. 684, 57 S.Ct. 667, 81 L.Ed. 887 (1937), and its progeny, controls the FF & E transaction. As the court explains below, the test adopted by the Fifth Circuit in Interfirst Bank incorporates the Kennedy line of cases. The court rejects the FDIC's contention that a different provability test applies. . The FDIC argues that Kennedy was addressing bankruptcy law in this respect. The court disagrees. Although the panel stated in this passage that a claim would arise and “be provable in bankruptcy,” and drew from bankruptcy cases as precedent, its decision was made in the context of the NBA. See, e.g., Argonaut Sav. & Loan Ass'n v. FDIC, 392" }, { "docid": "14943714", "title": "", "text": "F.2d 329, 333 (5th Cir.1992). As was demonstrated above, the amount of the deposit Plaintiffs would have received in liquidation included interest at the contract rate only to the date of Maine Savings Bank’s insolvency. Since Plaintiffs have already received as much as they would have in a liquidation proceeding, they have no further claim against the FDIC as receiver. The FDIC argues that even if its obligation to pay Plaintiffs’ claim were not limited by statute, under general principles of receivership law, its obligation to pay interest at the contract rate ceased at the date of the closing of Maine Savings Bank. The Court of Appeals for the First Circuit long ago stated that when a claim is established against an.insolvent national bank, “it must be the amount due and owing at the time of the declaration of insolvency, as of which time it is entitled, with the claims of the other creditors, to a ratable distribution of the assets of the bank.” Kennedy v. Boston-Continental National Bank, 84 F.2d 592, 597 (1st Cir.1936). The amount due and owing here at the time of insolvency was Plaintiffs’ deposit and interest accrued to that date, not the deposit plus accrued and future interest. Both Plaintiffs and Defendant rely on First Empire Bank-New York v. Federal Deposit Insurance Corp., 572 F.2d 1361 (9th Cir.1978) and its sequel, First Empire Bank-New York v. Federal Deposit Insurance Corp., 634 F.2d 1222 (9th Cir.1980) for their respective arguments that a ratable distribution has or has not been made to Plaintiffs under section 194 of the National Bank Act. It appears, however, that First Empire and its progeny explicating the National Bank Act’s requirement of a ratable distribution to creditors of a failed bank have been overruled by section 1821(i) of FIRREA. See, e.g., MCorp v. Clarke, 755 F.Supp. 1402, 1418 (N.D.Tex.1991); Senior Unsecured Creditors’ Committee v. FDIC, 749 F.Supp. 758, 763 (N.D.Tex.1990); see also, Texas American Bancshares, Inc. v. Clarke, 954 F.2d at 340 (deciding not to address retroactivity of § 1821 but distinguishing First Empire and finding that result would be the same" }, { "docid": "22055923", "title": "", "text": "FDIC, as receiver, subsequent to the commencement of this action, the Elizabeth Bank and the Reserve Bank were not named as defendants. The general rule is that a receiver may institute any suit on behalf of the corporation as the corporation itself might have commenced. W. Fletcher, Cyclopedia of the Law of Private Corporations § 7847 (1962 Revised Edition). When a corporation is in receivership, any demand to bring suit in its behalf must be made upon the receiver rather than the directors. See, e. g., Wachsman v. Tobacco Products Corp., 129 F.2d 815, 819 (3d Cir. 1942); Long v. Stites, 88 F.2d 554 (6th Cir.), cert, denied, 301 U.S. 706, 57 S.Ct. 939, 81 L. Ed. 1360 (1937). This rule also applies to receivers of national banks. See, e. g., Lucking v. Delano, 129 F.2d 283 (6th Cir. 1942); Wales v. Jacobs, 104 F.2d 264 (6th Cir.), cert, denied, 308 U.S. 599, 60 S.Ct. 130, 84 L.Ed. 501 (1939) ; Davis Trust Co. v. Hardee, 66 App.D.C. 168, 85 F.2d 571 (1936). “The receiver . . . becomes to all intents and purposes the bank — at least he stands in the place of the bank; . . . the receiver, after his appointment, represents the bank, its stockholders and creditors.” O’Connor v. Rhodes, 65 App.D.C. 21, 79 F.2d 146, 148 (1935). Section 1821(d) of 12 U.S.C. generally directs that the FDIC as receiver shall enforce the individual liability of the stockholders and directors, wind up the affairs of the closed bank, and pay to the depositors and other creditors the net amounts available for distribution to them. It also provides that the FDIC shall have all rights, powers, and privileges granted by law to a receiver of a national bank or District bank. 12 U.S.C. § 1819 specifically confers the power to sue. A derivative suit by shareholders should not be precluded merely because a bank is in the receivership of the FDIC. The FDIC would remain free to exercise its control over the winding up of the bank and to institute suit itself on behalf of the" }, { "docid": "8488227", "title": "", "text": "F.2d 595, at page 597, the reason for the requirement was stated as follows: “The purpose of the statutory nonrecognition of gain or loss from reorganization transactions, as indicated by the legislative history, was in part to prevent losses being established by bondholders, as well as stockholders, who received the new securities without substantially changing their original investment. The legislative history confirms the Congressional intent to cover .reorganizations where the taxpayer’s money is still tied up in the same kind of property as that in which it was originally invested. * * * The reorganization provisions were ■enacted to free from the imposition •of an income tax purely paper profits •or losses where there is no realization of gain or loss in the business ■sense but merely the recasting of the same interests in a different form, the tax being postponed to a future date when a more tangible gain or loss is realized.” (Emphasis supplied.) See also: Cortland Specialty Co. v. Commissioner, 2 Cir., 1932, 60 F.2d 937, 940, certiorari denied, 1933, 288 U.S. 599, 53 S.Ct. 316, 77 L.Ed. 975. Under the continuity of interest test, there was no tax free reorganization in this case since concededly the old stockholders of Products were entirely eliminated by the plan and received no proprietary interest in plaintiff. To escape application of the continuity of interest rule, plaintiff argues that although Fidelity did not formally own the stock of Products prior to the reorganization, it was in reality the equity owner of Products because of Products’ obvious insolvency. In support of this position plaintiff relies upon Helvering v. Alabama Asphaltic Limestone Co., 1942, 315 U.S. 179, 62 S.Ct. 540, 86 L.Ed. 775, and Palm Springs Holding Corp. v. Commissioner, 1942, 315 U.S. 185, 62 S.Ct. 544, 86 L.Ed. 785, in which the Supreme Court held that the continuity of interest test was satisfied and the requirements of a tax free reorganization met where all the assets of an insolvent corporation were transferred to a new corporation, which issued all of its stock to creditors of the insolvent corporation who had “stepped" }, { "docid": "14943713", "title": "", "text": "The Court is satisfied not only that the amount provided to Plaintiffs through operation of the P & A agreement was appropriate, but also that they have no further claim. Section 1821(i) of title 12 provides for valuation of the claims of creditors whether the Corporation has acted under section 1823(c) which permits purchase and assumption agreements, or otherwise. Section 1821(i)(2) provides: The maximum liability of the Corporation, acting as receiver or in any other capacity, to any person having a claim against the receiver or the insured depository institution for which such receiver is appointed shall equal the amount such claimant would have received if the Corporation had liquidated the assets and liabilities of such institution without exercising the Corporation’s authority under subsection (n) of this section or section 13 [12 U.S.C. § 1823]. (Emphasis added). If Maine Savings had been liquidated, the FDIC would have closed it, sold its assets, and paid Plaintiffs and other depositors their insured amounts, covering any deficiency with insurance funds. See Texas American Bancshares, Inc. v. Clarke, 954 F.2d 329, 333 (5th Cir.1992). As was demonstrated above, the amount of the deposit Plaintiffs would have received in liquidation included interest at the contract rate only to the date of Maine Savings Bank’s insolvency. Since Plaintiffs have already received as much as they would have in a liquidation proceeding, they have no further claim against the FDIC as receiver. The FDIC argues that even if its obligation to pay Plaintiffs’ claim were not limited by statute, under general principles of receivership law, its obligation to pay interest at the contract rate ceased at the date of the closing of Maine Savings Bank. The Court of Appeals for the First Circuit long ago stated that when a claim is established against an.insolvent national bank, “it must be the amount due and owing at the time of the declaration of insolvency, as of which time it is entitled, with the claims of the other creditors, to a ratable distribution of the assets of the bank.” Kennedy v. Boston-Continental National Bank, 84 F.2d 592, 597 (1st Cir.1936)." }, { "docid": "20359562", "title": "", "text": "without any further action by the lessor, the lease shall terminate and the lessor be entitled forthwith to damages measured, as provided in the covenant of the lease for liquidated damages.” Id. In Argonaut Sav. & Loan Ass’n v. FDIC, 392 F.2d 195, 196 (9th Cir.), cert. denied, 393 U.S. 839, 89 S.Ct. 116, 21 L.Ed.2d 110 (1968), the FDIC disaffirmed an insolvent national bank’s real property lease. The bank was declared insolvent on January 22,1965. Seven months later, on July 28, 1965, the FDIC disaffirmed the lease. On December 14, 1965 the lessor’s assignee sued to recover on the basis of one of three optional remedies that accrued upon appointment of a receiver. The Ninth Circuit cited Kennedy in denying future rent damages. Id. at 197. The court held that because the plaintiff did not attempt to exercise the option under the disaffirmed lease until well after the receivership, his claim did not exist upon the declaration of insolvency. Argonaut is factually similar to Kennedy in that the lessor did not purport to terminate the lease until 11 months after the bank failed, and a damage claim arose only after termination. Id. As in Kennedy, the exercise of the option to terminate gave rise to an impermissible new contractual claim. Id. In 80 Pine, Inc. v. European Am. Bank, 424 F.Supp. 908, 909 (E.D.N.Y.1976), the plaintiff contended his right to recover, although premised on the FDIC’s disaffirmance, which took place long after insolvency, related back to the declaration of insolvency. The lessee bank was declared insolvent on October 8, 1974. The relation-back argument relied on the FDIC’s January 28, 1975 lease repudiation letter, which stated that termination was effective from the date the FDIC took over as receiver. The court rejected plaintiffs argument. It concluded that the letter mailed four months after the bank failed could not relate back to the date of insolvency, especially because the FDIC did not possess the power to alter other creditors’ rights by giving the landlord a claim that did not exist upon the declaration of insolvency. Id. at 909-10. The court held" }, { "docid": "12038875", "title": "", "text": "the parties to a lease to agree upon the measure of damages for breach that is here asserted. (Cal.Civ.Code § 3308). But that does not necessarily mean that, under such a lease, the lessor’s claim is good against the receiver of an insolvent lessee national bank. This is an action under the National Bank Act, and particularly Section 194 of Title 12, U.S.C., formerly R.S. 5236. The District Court is a court of competent jurisdiction under that section. See 12 U.S.C. § 1819, 28 U.S.C. § 1331. And the question presented is governed by federal law, here, section 194 of 12 U.S.C. American Surety Co. v. Bethlehem Nat’l Bank, 1941, 314 U.S. 314, 316, 62 S.Ct. 226, 86 L.Ed. 241. The paucity of decisions dealing with claims against receivers of insolvent national banks since the great banking crisis of the 1930’s is some indication of the success of the measures that were then taken, including the creation of FDIC itself, to strengthen the banking system. But section 194 has not been amended, and there exists direct authority in support of the judgment here. In Kennedy v. Boston-Continental Nat’l Bank, 1 Cir., 1936, 84 F.2d 592, the facts were strikingly similar to the facts of this case, and it was held that the lessor was not entitled to judgment because his claim had not accrued and become unconditionally fixed on or before the date when the bank was declared insolvent. That is equally true here. The bank was declared insolvent on January 22, 1965; the appellants did nothing to exercise the option given them by the lease until December 14, 1965, nearly 11 months later. The appellants did not have, on January 22, 1965, the claim that they now assert. We think the reasoning in Kennedy, and the authorities there cited, fully support the judgment here. See also Boston-Continental Nat’l Bank v. Wendell Phillips Co., 1 Cir., 1936, 84 F.2d 599; Dinan v. First Nat’l Bank of Detroit, 6 Cir., 1941, 117 F.2d 459, 461-462. We do not overlook the argument of appellants that the receiver has no power to disaffirm" }, { "docid": "22964921", "title": "", "text": "upon performance, ‘the standby credit,’ * * * ‘contemplates payment upon failure to perform.’” Katskee, The Standby Letter of Credit Debate — the Case for Congressional Resolution, 92 Banking L.J. 697, 699 (1975) (hereinafter “Katskee”). This has created an awkward situation for national banks, since the standby letter of credit possesses more of the characteristics of a guarantee and national banks are not authorized to enter into guarantees. See Katskee, supra at 712-14; Harfield, The Standby Letter of Credit Debate, 94 Banking L.J. 293, 301-03 (1977). No contention is made here, however, that issuance of the letters of credit in question was ultra vires. The Receiver has not asserted that defense and the Comptroller appears to have chosen instead to recognize the widespread bank use and commercial Usefulness of the instrument and to attempt, by regulation, to eliminate the abuses which the failure of USNB has demonstrated can result from unregulated and excessive use. FDIC Reply Brief at 5-6; see, e. g., 12 C.F.R. § 7.7016 (1977). B. Provability of Standby Letters of Credit ■ [2] The Receiver contends, nevertheless, that standby letters of credit, whether ultra vires or not, are not provable in a national bank receivership, since, it asserts, claims against the receiver of a national bank are not provable if they were contingent on the date of the bank's insolvency. Although the case law is quite limited, where commentators have made such statements of the law, e. g., 9 C.J.S. Banks and Banking § 755, they are found to rest on cases involving a lessor of property leased to the bank who is asserting a claim against the receiver to recover liquidated damages for loss of future rent. Kennedy v. Boston-Continental Nat’l Bank, 84 F.2d 592 (1st Cir. 1936), cert. dismissed, 300 U.S. 684, 57 S.Ct. 667, 81 L.Ed. 887 (1937), was such a case. There the lessor, following default by the national bank lessee, sought to exercise an option given him by the lease to obtain as liquidated damages the difference between the fair rental value of the property for the balance of the lease and" }, { "docid": "22864290", "title": "", "text": "funds as receiver. SFC’s claim of surprise at FDIC’s 1979 answer, in which the appellant again explicitly asserted its right to the funds as receiver, is therefore entirely unfounded. III. THE MERITS A. Who gets the money? Now that we have disposed of each of SFC’s challenges to the FDIC’s entitlement to claim the escrow fund in its capacity as receiver for the PSSB, we must settle the question which precipitated the formation of the escrow fund in the first place, as between SFC and the FDIC as receiver, which party is entitled to take final possession of the $326,200 in the escrow account? We do not doubt for a moment the propriety of the district court’s determination that the FDIC has the superior equitable claim as between these two parties. As noted by the district court, SFC was, at best, an unknowing participant in a scheme designed to defraud depositors, creditors and shareholders of the PSSB. Under the link financing agreement entered into by SFC, the PSSB and various other parties, SFC neither possessed nor claimed any ownership interest in the funds which eventually constituted the escrow fund, but merely held the money on behalf of the PSSB until such time as the interest payments were due the letter of credit investors. As previously noted, the plan then called for SFC to transfer the funds to the PSSB which, as obligor of the letters of credit, would make the interest payments to investors. SFC’s claim on this appeal that the Bank acted merely as a “conduit” through which SFC made interest payments to the investors is absolutely contrary to the evidence. It is well settled that the rights and liabilities of a bank and the bank’s debtors and creditors are fixed at the declaration of the bank’s insolvency. First Empire Bank v. FDIC, 572 F.2d 1361, 1367-68 (9th Cir.), cert. denied 439 U.S. 919, 99 S.Ct. 293, 58 L.Ed.2d 265 (1978); FDIC v. Grella, 553 F.2d 258, 262 (2d Cir.1977); Kennedy v. Boston-Continental National Bank, 84 F.2d 592, 597 (1st Cir.1936), cert. denied 300 U.S. 684, 57 S.Ct. 667," }, { "docid": "20359559", "title": "", "text": "of cases in which courts have held claims for lost future rent to be unprovable when some type of post-insolvency conduct is necessary to give rise to the claim. The claim is contingent because it does not accrue on or before insolvency. The FDIC maintains that these decisions stand for the proposition that a lessor can under no circumstances recover future rents, even pursuant to an ipso facto clause. The FDIC also contends the three-prong test is inapplicable when determining the provability of a lessor’s claim and claims involving lease terminations. As will be seen, the tripartite Inter-first Bank standard incorporates the holdings of the lease cases on which the FDIC relies, and is properly applied in the present case. Further, the lease decisions do not preclude claims such as those made by Capital and Prudential because their claims are not dependent upon new contractual obligations. In Kennedy v. Boston-Continental Nat’l Bank, 84 F.2d 592, 595 (1st Cir.1936), cert. dismissed, 300 U.S. 684, 57 S.Ct. 667, 81 L.Ed. 887 (1937), the First Circuit addressed whether a lessor’s assignee could recover liquidated damages pursuant to a lease covenant that provided that at the lease’s termination, the lessee would be liable for the excess of rent reserved, less the fair rental value. The covenant that provided for liquidated damages did not accrue until the landlord met several conditions precedent: written demand, notice, and reentry. The proviso specified that if the lessee defaulted for 30 days on rent payments or failed for 30 days and subsequently the lessor provided written notice of the default, then the lessor, could reenter the premises. .Upon reentry, the lease terminated and the lessee became obligated for liquidated damages. The lessee bank failed to pay rent on December 1, 1931 and was declared insolvent on December 17, 1931. Id. at 594-95. The lessor sent default notice letters to the bank on January 8,1932. On January 13,1932 the receiver notified the lessor of its intention not to assume the lease. On August 19,1932 the plaintiff reentered and purported to terminate the lease. Id. at 596. Relying on the principle" }, { "docid": "23457272", "title": "", "text": "S. Ct. 257, 260, 77 L. Ed. 428, wherein the court said: “But the mere purchase for money of the assets of one company by another is beyond the evident purpose of the provision, and has no real semblance to a merger or consolidation. Certainly, we think that to he within the exemption the seller must acquire an interest in the affairs of the purchasing company more definite than that incident to ownership of its short-term purchase-money notes. This general view is adopted and well sustained in Cortland Specialty Co. v. Commissioner of Internal Revenue (C. C. A.) 60 F.(2d) 937, 939, 940. It harmonizes with the underlying purpose o-f the provisions in respect of exemptions and gives some effect to all the words employed.” In Cortland Specialty Co. v. Commissioner (C. C. A. 2) 60 F.(2d) 937, 939, cited with approval in the above quotation, the taxpayer made the same contention as is made here by the collector; the Commissioner there took the position here taken by the taxpayer. The Second Circuit Court of Appeals held that the term “reorganization” could not have included “mere purchases by one company of the assets of another.” It held that mergers and consolidations contemplate that the interests of the stockholders are retained in the surviving or newly created company, and said that “a sale of the assets of one corporation to another for cash without the retention of any interest by the seller in the purchaser is quite outside the objects of merger and consolidation statutes.” Certiorari was denied, 288 U. S. 599, 53 S. Ct. 316, 77 L. Ed.—. See Sarther Grocery Co. v. Commissioner (C. C. A. 7) 63 F.(2d) 68 ; Minnesota Tea Company v. Commissioner, 28 B. T. A. —; “Definition of Reorganization,” Homer Hendricks, 45 Harv. Law Rev. 648. These authorities leave no doubt that a purchase for cash of all the properties of one corporation by another cannot be considered as a reorganization, merger or consolidation of the two companies. To avoid tins conclusion the collector then undertakes to separate the component parts of this single" }, { "docid": "3873871", "title": "", "text": "they were provable and vested — that is, “the liability of the bank ... accrued and bec[a]me unconditionally fixed on or before the time it [was] declared insolvent.” Kennedy v. Boston-Continental Nat’l Bank, 84 F.2d 592, 597 (1936). SREOC and the RTC assert that this requirement survives the adoption of FIRREA and applies to claims arising out of the receiver’s repudiation of an insolvent thrift’s contracts. They argue that Nashville’s claims fail to meet this requirement because on the date the RTC became receiver, Nashville’s rights under the refinancing agreement were contingent rather than “accrued and ... unconditionally fixed”: the company would only receive the refinancing if (1) it made the monthly payments of refinancing fees for the remaining term of the underlying loan, (2) it paid the thrift’s normal loan fees and submitted all the applications and documentation required for the refinancing, and (3) its application, insurance, and financial papers were all in order. In the RTC’s words, these contingencies left Nashville with a mere “right to apply to Savers Savings for a new loan at ‘market rate’ in 1998,” a right that had no fixed or recoverable value when the RTC became receiver in September 1991. The idea that an obligation must have become absolute by the time of insolvency had clearly weakened even before FIRREA’s adoption, however, and it plainly has not survived the statute’s specification of claims recoverable upon repudiation in 12 U.S.C. § 1821(e)(3). Even in a pre-FIRREA insolvency, for example, creditors could recover for a receiver’s breach of a “standby” (and thus contingent) letter of credit. See Citizens State Bank v. FDIC, 946 F.2d 408 (5th Cir.1991). We followed Citizens State Bank in applying FIRREA in Office and Professional Employees Int’l Union, Local 2 v. FDIC, 27 F.3d 598 (D.C.Cir.1994), where we found that dismissed employees of an insolvent bank could recover severance benefits promised under their repudiated collective bargaining agreement even though they had not been fired when the receiver was appointed and had only contingent rights to the benefits at that time. To show that the claim had “accrued,” it was enough" }, { "docid": "22964922", "title": "", "text": "[2] The Receiver contends, nevertheless, that standby letters of credit, whether ultra vires or not, are not provable in a national bank receivership, since, it asserts, claims against the receiver of a national bank are not provable if they were contingent on the date of the bank's insolvency. Although the case law is quite limited, where commentators have made such statements of the law, e. g., 9 C.J.S. Banks and Banking § 755, they are found to rest on cases involving a lessor of property leased to the bank who is asserting a claim against the receiver to recover liquidated damages for loss of future rent. Kennedy v. Boston-Continental Nat’l Bank, 84 F.2d 592 (1st Cir. 1936), cert. dismissed, 300 U.S. 684, 57 S.Ct. 667, 81 L.Ed. 887 (1937), was such a case. There the lessor, following default by the national bank lessee, sought to exercise an option given him by the lease to obtain as liquidated damages the difference between the fair rental value of the property for the balance of the lease and the rental provided by the lease. The court held the claim not provable, relying on contract principles which reasoned that exercise of the option by the lessor created a new contract which came into being at the time of re-entry by the lessor. This court has followed Kennedy in a case also dealing with an exercise of option to obtain liquidated damages for loss of future rent, Argonaut Savings and Loan Ass’n v. FDIC, 392 F.2d 195, 197 (9th Cir.), cert. denied, 393 U.S. 839, 89 S.Ct. 116, 21 L.Ed.2d 110 (1968). Accord, FDIC v. Grella, 553 F.2d 258, 262 (2d Cir. 1977). Although these cases use broad language, indicating that the bank’s liability on any claim must have accrued and be unconditionally fixed at the date of insolvency, they are, by virtue of their dependence on the “new contract” principle, distinguishable from cases not dealing with lease options exercised after insolvency. The claims here are based on letters of credit that were in existence before insolvency and are not dependent on any new contractual" }, { "docid": "21375098", "title": "", "text": "the properties and franchises of another whose stock it has acquired. The merged corporation ceases to exist, and the merging corporation alone survives.” Cortland Specialty Company et al. v. Commissioner of Internal Revenue, 2 Cir., 60 F.2d 937, 939. It would be hard to more accurately describe what happened in the instant case. See, also, Pinellas Ice & Cold Storage Co. v. Commissioner of Internal Revenue, 287 U.S. 462, 53 S.Ct. 257, 77 L.Ed. 428. In the case of C. H. Mead Coal Company v. Commissioner, 4 Cir., 72 F.2d 22, 28, will be found an able discussion, by Judge Soper of this court, of some of the questions here involved. There the court said: “It will thus be seen that the general purpose of all of these reorganization provisions was the same, not merely to remove the impediment to corporate readjustments, but also to prevent the recognition of purely fictitious gains or losses in the administration of the income tax law. * * * And the course of the legislation indicates that the various additions and amendments were intended to enlarge, rather than restrict, the scope of the section as a whole. * * * “If there is not merely a sale of the assets, but a continuity of interest on the part of the old stockholder in the new business, so that the old stockholder does not actually liquidate his holdings, but continues to be a participant in the enterprise without actual realization of profit, and if the transaction partakes of the nature of a merger or consolidation in a liberal view, it is not the purpose of the act to recognize either a gain or a loss in the transaction, and no such gain or loss will affect the income tax of the stockholder until the new stock or securities are'disposed of.” The continuity of interest frequently held by the courts to be necessary in a reorganization (Cortland Specialty Company v. Commissioner, supra; C. H. Mead Coal Co. v. Commissioner, supra), was present here. The taxpayer held practically the same interest in the property after the plan" } ]

[ { "docid": "21395817", "title": "", "text": "McLaughlin, Practice Commentaries, 7B McKinney’s Consol. Laws of N.Y. Ann., C301:2, at 9 (McKinney 1990). Plaintiff does not attempt to argue that Lark has sufficient contacts with New York to establish “doing business” under the CPLR § 301 test, and thus there is no jurisdiction based on Kahn Lucas’ personally serving Shea in New York. 3. New. York Arbitration Clause Finally, Kahn Lucas contends that this Court has jurisdiction over Lark because the purchase orders issued by Kahn Lucas contain a New York arbitration clause. The clause states that Any controversy arising out of or relating to this Order ... shall be resolved by arbitration in the City of New York____ The parties consent to the application of the New York or Federal Arbitration Statutes and to the jurisdiction of the Supreme Court of the State of New York, and of the United States District Court of the South ern District of New York, for all purposes in connection with said arbitration---- In Merrill Lynch, Pierce, Fenner & Smith Inc. v. Lecopulos, 553 F.2d 842, 844 (2d Cir.1977), the Second Circuit held that when a party agrees to arbitrate a dispute in New York, such agreement is deemed consent to the jurisdiction of the courts for purposes relating to enforcing the arbitration agreement. The rationale of this rule, however, means that this Court has jurisdiction over Lark only in support of arbitration. Plaintiff has not yet moved to compel arbitration, although it has indicated a desire to arbitrate the dispute. The defendant has suggested that it may have defenses to a motion to compel. Since the issue is not yet fully presented to the Court, all that can be said at this time is that the arbitration clause does not give this Court personal jurisdiction over the defendant to litigate the claims in this lawsuit. Conclusion The motion to dismiss for lack of personal jurisdiction is granted. Dismissal of the action is stayed, however, for thirty days to permit the plaintiff to file any motion to compel arbitration. Should such a motion be filed and be opposed, opposition papers will" } ]

[ { "docid": "22132010", "title": "", "text": "417 U.S. at 520 n. 15, 94 S.Ct. at 2457 n. 15., This concern is addressed by the broad language of section 202 of the Convention Act. Considering the language of the Convention Act in the context of the framework of title 9 and the purposes of the Convention, we find no justification for removing from the Convention Act’s scope a subset of commercial employment agreements. The crewmembers’ arbitration provisions constitute commercial legal relationships within the meaning of the Convention Act. II. Plaintiffs’ Employment AgReements WERE Agreements in Writing, Which Vested the Jurisdiction of the District Court Finding no error in the district court’s determination that instant arbitration provisions are commercial legal relationships, we turn to the other relevant jurisdictional prerequisite, i.e., that the party seeking arbitration 'provide “an agreement in writing” in which the parties undertake to submit the dispute to arbitration. Convention, art. 11(1); see also Czarina, 358 F.3d at 1291. Agreements in writing include “an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams.” Convention, art. 11(2). NCL supplied the district court with copies of the employment agreement and the Standard Terms signed by each crew-member. See Defs.’ Resp. to Pis.’ Mot. for Remand, Exs. D-F; R-3-60. Although Plaintiffs claim the crewmembers did not have an opportunity to review the entirety of the Standard Terms before signing, Plaintiffs do not dispute the veracity of the signatures. See Pis.’ Op. Br. at 36 n.l. Accordingly, this documentation fulfills the jurisdictional prerequisite that the court be provided with an agreement to arbitrate signed by the parties. Plaintiffs try in vain to identify three reasons why the signed documents fail to constitute agreements in writing. First, Plaintiffs impugn the incorporation of the Standard Terms into the employment agreement, citing decisions of other Circuits that interpret Article 11(2) to require inclusion of an arbitration provision in a signed agreement or an exchange of letters or telegrams. See Std. Bent Glass, 333 F.3d at 449; Kahn Lucas Lancaster, Inc. v. Lark Int’l Ltd., 186 F.3d 210, 218 (2d Cir.1999);" }, { "docid": "21395801", "title": "", "text": "companies in addition to Kahn Lucas, which together accounted for purchases of more than $1 million. Lark’s income from shipping goods into New York on behalf of these six companies, based on an average seven percent commission, was $65,727.56. Lark employees visited these companies in addition to visiting Kahn Lucas when they were in New York. Lark is a plaintiff in an unrelated lawsuit in the Southern District of New York. Discussion It is well established that on a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, “the plaintiff bears the burden of showing that the court has jurisdiction over the defendant.” Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir.), cert. denied, — U.S. -, 117 S.Ct. 508, 136 L.Ed.2d 398 (1996). The plaintiffs burden depends on the procedural posture of the litigation. Where there has been no discovery, “a plaintiff may defeat a motion to dismiss based on legally sufficient allegations of jurisdiction.” Id. But where there has been discovery regarding personal jurisdiction, the plaintiffs burden is to make a prima facie showing which includes an averment of facts that, if given credit by the ultimate trier of fact, would be sufficient to establish jurisdiction over the defendant. Id. at 567. In a diversity case, this Court must apply the personal jurisdiction law of the forum state. Agency Rent A Car Sys., Inc. v. Grand Rent A Car Corp., 98 F.3d 25, 29 (2d Cir.1996); Arrowsmith v. United Press Int'l, 320 F.2d 219, 223 (2d Cir.1963) (en banc). To determine whether personal jurisdiction exists, this Court must engage in a two-part inquiry. First, there must be a basis for personal jurisdiction under New York state law. Second, the exercise of jurisdiction must comport with the requirements of due process. See Metropolitan Life Ins., 84 F.3d at 567. Because it is clear, and defendants appear to concede, that Lark has sufficient contacts with New York to satisfy the “minimum contacts” test of due process, see International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945), the" }, { "docid": "21395800", "title": "", "text": "Lucas’ claims against the Philippine manufacturers for the defective goods shipped to Sears. Instead, Shea was served with the Summons and Complaint in this action. This was the last of approximately six meetings in New York between Kahn Lucas and Lark personnel between 1993 and 1995. In the prior meetings the representatives of the two companies discussed generally how their business was doing, “what we can do to go forward,” clothing lines that would be produced for that particular season, prices and current volume, and Lark’s interest in assisting Kahn Lucas with its recently-acquired license from Disney for Lion King-related products. In these meetings, however, Shea and Kahn Lucas did not negotiate any particular pur chase. Thus, they did not discuss the commission structure, the volume of lines which Kahn Lucas was seeking to purchase in the coming season, or freight costs. The purchase orders on which this action is based contained a New York arbitration clause and a New York choice of law clause. In 1995, Lark acted as agent for six New York companies in addition to Kahn Lucas, which together accounted for purchases of more than $1 million. Lark’s income from shipping goods into New York on behalf of these six companies, based on an average seven percent commission, was $65,727.56. Lark employees visited these companies in addition to visiting Kahn Lucas when they were in New York. Lark is a plaintiff in an unrelated lawsuit in the Southern District of New York. Discussion It is well established that on a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, “the plaintiff bears the burden of showing that the court has jurisdiction over the defendant.” Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir.), cert. denied, — U.S. -, 117 S.Ct. 508, 136 L.Ed.2d 398 (1996). The plaintiffs burden depends on the procedural posture of the litigation. Where there has been no discovery, “a plaintiff may defeat a motion to dismiss based on legally sufficient allegations of jurisdiction.” Id. But where there has been discovery regarding personal jurisdiction, the plaintiffs burden is" }, { "docid": "15893659", "title": "", "text": "contract is the single fact that offers most substantial support for the proposition that the manner in which FCFC conducted its program of purchases of American equipment for its acetic acid plant reflected a measure- of acquiescence in the possible need to submit to the jurisdiction of American courts, should disputes arise. But we think that this fact is not sufficient to carry the day. We of course recognize that, in the event of a dispute between FCFC and Nooter, the contractual agreement between FCFC and Nooter would probably — and properly — be regarded as a waiver of objections to judicial jurisdiction as well, whether that jurisdiction was to be exercised by a New York state court or, in the alternative, by a federal court, located anywhere in the United States, with respect to a claim arising under federal law. But the dispute in the case at bar does not involve Nooter, and the FCFC-JOC contract contains no comparable venue-selection provision. More to the point, the provision in the FCFC-Nooter contract only involved venue selection. It was not a provision stipulating that New York law, or the law of any other American jurisdiction, would govern such disputes as might arise. Accordingly, we are not persuaded that the provision constitutes purposeful availment of the benefits and protections of United States law. Given the attenuated connection between the arbitration clause and the instant litigation, it is insufficient to make the Court’s exercise of jurisdiction comport with “traditional notions of fair play and substantial justice.” Cf. Kahn Lucas Lancaster v. Lark Int’l Ltd., 956 F.Supp. 1131, 1138-39 (S.D.N.Y.1997) (New York arbitration clause is insufficient basis for jurisdiction over suit even between the parties to the contract containing the clause until the plaintiff indicates a desire to arbitrate the suit). Finally, we note that the United States has, at best, a very limited interest in adjudicating this dispute between two non-citizens, which is primarily a dispute regarding acts that took place in Taiwan that caused an injury in Great Britain. Although BP emphasizes that this suit seeks only to enjoin and recover damages" }, { "docid": "1048873", "title": "", "text": "Egyptian law. See Sarhank Br. at 22 (“As a simple matter of Egyptian contract law, Oracle was bound by the arbitration clause by the signature of its wholly owned subsidiary.”); id. at 24 (“Pursuant to Egyptian law, the Arbitrators rejected Oracle’s defense that it was not a proper party to the arbitration.”). It is American federal arbitration law that controls. An American nonsignatory cannot be bound to arbitrate in the absence of a full showing of facts supporting an articulable theory based on American contract law or American agency law. See Interbras Cayman Co. v. Orient Victory Shipping Co., S.A., 663 F.2d 4, 7 (2d Cir.1981) (district court committed error by not having a trial as to disputed facts regarding agency relationship). To hold otherwise would defeat the ordinary and customary expectations of experienced business persons. The principal reason corporations form wholly owned foreign subsidiaries is to insulate themselves from liability for the torts and contracts of the subsidiary and from the jurisdiction of foreign courts. The practice of dealing through a subsidiary is entirely appropriate and essential to our nation’s conduct of foreign trade. Conclusion The judgment appealed from is vacated and the cause remanded to the district court to find as a fact whether Oracle agreed to arbitrate, by its actions or inac tion, or by reason of any action of Systems as to which Oracle clothed Systems with apparent or actual authority to consent on its behalf to arbitration, or on any other basis recognized by American contract law or the law of agency, and for further proceedings consistent with such finding. . At the time, an appeal was pending in the Egyptian Supreme Court. . Notwithstanding Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), and like cases, Oracle strongly urges that we must find that the district court lacked subject matter jurisdiction based on Kahn Lucas Lancaster, Inc. v. Lark Int’l. Ltd., 186 F.3d 210 (2d Cir.1999), in which we stated that the district court lacked subject matter jurisdiction to entertain a petition to compel arbitration under the Convention because there" }, { "docid": "21395811", "title": "", "text": "through correspondence and over the phone with Lark in Hong Kong and Kahn Lucas in New York. Lark performed its obligations under the contract entirely in Asia. Lark was not in New York when the purchase orders were negotiated or issued. Lark did not ship the goods into New York. Finally, the December 1995 meeting between Shea and Kahn Lucas, which was intended to discuss the current dispute, is of no jurisdictional significance. See CutCo Indus., 806 F.2d at 368. The existence of a choice of law clause, while not sufficient standing alone to confer personal jurisdiction, is “relevant in determining whether a nondomiciliary trans acted business’ for CPLR 302(a)(1) purposes.” Id. at 367. Here, however, the choice of law clause is not sufficient to tip the balance in favor of finding jurisdiction. Plaintiff also points to meetings in New York between Lark employees and six other customers, and the fact that Lark is maintaining an unrelated lawsuit in the Southern District of New York. Insofar as these contacts are not related in any way'to the underlying cause of action, they are irrelevant for purposes of determining whether there is personal jurisdiction under CPLR § 302(a)(1) because the lawsuit does not “arise from” these contacts. See McGowan, 437 N.Y.S.2d at 645, 419 N.E.2d at 322-23. 2. Transient Jurisdiction As another basis under New York law for personal jurisdiction over Lark, plaintiff argues that because Shea was served personally in New York, this Court has “transient” jurisdiction over Lark. In Burnham v. Superior Court, 495 U.S. 604, 622, 110 S.Ct. 2105, 2116-17, 109 L.Ed.2d 631 (1990), a plurality of the Supreme Court recently reaffirmed the ancient principle that transient jurisdiction — where an individual defendant is served while temporarily present in the state — allows suit even on matters unrelated to the defendant’s presence in the state. Burnham did not specifically address whether transient jurisdiction is applicable to a corporation, as opposed to an individual, although the plurality did remark that corporations “have never fitted comfortably in a jurisdictional regime based primarily upon ‘de facto power over the defendant’s person.’ ”" }, { "docid": "15893660", "title": "", "text": "selection. It was not a provision stipulating that New York law, or the law of any other American jurisdiction, would govern such disputes as might arise. Accordingly, we are not persuaded that the provision constitutes purposeful availment of the benefits and protections of United States law. Given the attenuated connection between the arbitration clause and the instant litigation, it is insufficient to make the Court’s exercise of jurisdiction comport with “traditional notions of fair play and substantial justice.” Cf. Kahn Lucas Lancaster v. Lark Int’l Ltd., 956 F.Supp. 1131, 1138-39 (S.D.N.Y.1997) (New York arbitration clause is insufficient basis for jurisdiction over suit even between the parties to the contract containing the clause until the plaintiff indicates a desire to arbitrate the suit). Finally, we note that the United States has, at best, a very limited interest in adjudicating this dispute between two non-citizens, which is primarily a dispute regarding acts that took place in Taiwan that caused an injury in Great Britain. Although BP emphasizes that this suit seeks only to enjoin and recover damages for FCFC’s actions in the United States, and not its acts of misappropriation in Taiwan, it cites no authority for the proposition that a plaintiff can strengthen the relationship between the defendant, the forum and the litigation by limiting the relief sought. Regardless of whether BP seeks relief for the actions of FCFC in Taiwan, the fact remains that FCFC has done nothing of substance other than contract in Taiwan with the Unites States based vendors to make one-time deliveries of equipment in Taiwan. Under Burger King, those purchases and the associated correspondence sent from Taiwan are insufficient to create specific personal jurisdiction. We find substantial support for our holding in Burlington Indus., Inc. v. Maples Indus., Inc., 97 F.3d 1100, 1103 (8th Cir.1996). The plaintiff there brought a claim for misappropriation of trade secrets in the Eastern District of Arkansas. As a basis for specific jurisdiction, the plaintiff pointed to the fact that the four machines incorporating the misappropriated trade secrets were purchased from a third-party Arkansas resident. See id. However, none of the" }, { "docid": "21395818", "title": "", "text": "844 (2d Cir.1977), the Second Circuit held that when a party agrees to arbitrate a dispute in New York, such agreement is deemed consent to the jurisdiction of the courts for purposes relating to enforcing the arbitration agreement. The rationale of this rule, however, means that this Court has jurisdiction over Lark only in support of arbitration. Plaintiff has not yet moved to compel arbitration, although it has indicated a desire to arbitrate the dispute. The defendant has suggested that it may have defenses to a motion to compel. Since the issue is not yet fully presented to the Court, all that can be said at this time is that the arbitration clause does not give this Court personal jurisdiction over the defendant to litigate the claims in this lawsuit. Conclusion The motion to dismiss for lack of personal jurisdiction is granted. Dismissal of the action is stayed, however, for thirty days to permit the plaintiff to file any motion to compel arbitration. Should such a motion be filed and be opposed, opposition papers will be due thirty days after the motion is filed. SO ORDERED. . Even absent defendant’s apparent concession on the due process issue, I would find that Lark has sufficient \"minimum contacts\" with New York to justify the exercise of specific personal jurisdiction over it, and that jurisdiction would be reasonable under the factors drawn from Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 313-14, 107 S.Ct. 1026, 1032-33, 94 L.Ed.2d 92 (1987). See Metropolitan Life Ins., 84 F.3d at 567-68. . The cases on which plaintiff relies do not suggest a different result. The New York meetings in Interface Biomedical Labs. Corp. v. Axiom Med., Inc., 600 F.Supp. 731, 736 (E.D.N.Y.1985), significantly advanced the formation of a contract. In GB Marketing USA Inc. v. Gerolsteiner Brunnen GmbH & Co., 782 F.Supp. 763, 770-71 (W.D.N.Y.1991), the defendant shipped its products into New York state, applied to New York State authorities for the permits necessary to sell the products in the state, and participated in the marketing of its products in the state. . Plaintiff" }, { "docid": "21395810", "title": "", "text": "ICC Primex Plastics Corp. v. LA/ES Laminati Estrusi Termoplastici S.P.A, 775 F.Supp. 650, 655 (S.D.N.Y.1991) (no jurisdiction where New York meeting did not “substantially advance” the relationship); Pneuma-Flo Sys., Inc. v. Universal Machinery Corp., 454 F.Supp. 858, 866 (S.D.N.Y.1978) (finding no jurisdiction where defendant’s high-level officers made several trips to New York to discuss finding new clients, market conditions, and trade prospects, since such meetings were “not essential to the ongoing relationship of the parties.”). I find that the six meetings between Shea and Kahn Lucas over three years were not significant enough to confer personal jurisdiction over Lark. The meetings were simply not essential to the continuance or development of the relationship between Kahn Lucas and Lark; they are more properly characterized as courtesy calls common in business dealings. Moreover, these meetings played no role in the formation of the relationship between the parties. This relationship began with Kahn Lucas’s representatives meeting with Lark in Asia—thus the most important part of the negotiations were conducted there. The maintenance of the relationship was conducted largely through correspondence and over the phone with Lark in Hong Kong and Kahn Lucas in New York. Lark performed its obligations under the contract entirely in Asia. Lark was not in New York when the purchase orders were negotiated or issued. Lark did not ship the goods into New York. Finally, the December 1995 meeting between Shea and Kahn Lucas, which was intended to discuss the current dispute, is of no jurisdictional significance. See CutCo Indus., 806 F.2d at 368. The existence of a choice of law clause, while not sufficient standing alone to confer personal jurisdiction, is “relevant in determining whether a nondomiciliary trans acted business’ for CPLR 302(a)(1) purposes.” Id. at 367. Here, however, the choice of law clause is not sufficient to tip the balance in favor of finding jurisdiction. Plaintiff also points to meetings in New York between Lark employees and six other customers, and the fact that Lark is maintaining an unrelated lawsuit in the Southern District of New York. Insofar as these contacts are not related in any way'to" }, { "docid": "1048874", "title": "", "text": "appropriate and essential to our nation’s conduct of foreign trade. Conclusion The judgment appealed from is vacated and the cause remanded to the district court to find as a fact whether Oracle agreed to arbitrate, by its actions or inac tion, or by reason of any action of Systems as to which Oracle clothed Systems with apparent or actual authority to consent on its behalf to arbitration, or on any other basis recognized by American contract law or the law of agency, and for further proceedings consistent with such finding. . At the time, an appeal was pending in the Egyptian Supreme Court. . Notwithstanding Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), and like cases, Oracle strongly urges that we must find that the district court lacked subject matter jurisdiction based on Kahn Lucas Lancaster, Inc. v. Lark Int’l. Ltd., 186 F.3d 210 (2d Cir.1999), in which we stated that the district court lacked subject matter jurisdiction to entertain a petition to compel arbitration under the Convention because there was \"no 'agreement in writing’ sufficient to bring [the] dispute within the scope of the Convention.” 186 F.3d at 218-19. For three reasons, we do not believe that Kahn Lucas controls the outcome of the jurisdictional question with which we are presented. First, the Kahn Lucas court assumed the dispositive question was one of subject matter jurisdiction without addressing the distinction between determining whether subject matter jurisdiction existed and determining — on the merits — whether the parties had made an agreement to arbitrate. Second, it would have made no difference in the outcome if we had stated that we had jurisdiction and proceeded to address the existence of an agreement to arbitrate. The Supreme Court has concluded that its own decisions, issued under like circumstances, lack precedential value on the issue of subject matter jurisdiction. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 91, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Applying this analysis, we conclude that Kahn Lucas does not require us to reverse the district court's conclusion that" }, { "docid": "16480579", "title": "", "text": "relationship. The arbitration clause is incorporated by reference into the parties’ contract. III. An arbitration provision in an international commercial agreement is governed by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“CREFAA”). Where a dispute arises from an international commercial agreement, a court must address four factors to determine whether the arbitration agreement falls under CREFAA. If the answers are all in the affirmative, the court must order arbitration unless it determines the agreement is null and void. Ledee v. Ceramiche Ragno, 684 F.2d 184, 186-87 (1st Cir.1982). The first of these questions, whether there is “an agreement in writing to arbitrate the subject of the dispute,” is at issue. Convention on the Recognition and Enforcement of Foreign Arbitral Awards, art. II, § 2; 9 U.S.C. §§ 201-208. Article II, section 2 of CRE-FAA provides: “The term ‘agreement in writing’ shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams.” The parties stipulate they did not sign an agreement in writing. At issue is whether an arbitral clause was contained in the exchange of letters that occurred. The answer depends on article II of CRE-FAA. Two courts of appeals have addressed this issue but analyzed the relevant section differently. In Sphere Drake Insurance PLC v. Marine Towing, Inc., 16 F.3d 666, 669 (5th Cir.1994), the Court of Appeals for the Fifth Circuit interpreted article II, section two as imposing the signature and exchange of letters requirements only where the parties’ consent to arbitrate is evidenced by an independent agreement to arbitrate, and not an arbitral clause in a contract. In Kahn Lucas Lancaster, Inc. v. Lark International Ltd., 186 F.3d 210 (2d Cir.1999), the Court of Appeals for the Second Circuit disagreed, holding that the modifying phrase “signed by the parties or contained in an exchange of letters or telegrams” applied to both “an arbitral clause in a contract” and “an arbitration agreement.” Id. at 216-18. We agree with the Court of Appeals for the Second Circuit. The CREFAA" }, { "docid": "21395809", "title": "", "text": "156 (emphasis supplied). Even defendant’s prior employment with the New York corporate plaintiff was insufficient since the defendant, who had worked in the plaintiffs Japanese office, only visited New York once while an employee and “did not conduct any substantial employment-related activities in New York.” Id. (emphasis supplied). Cases where courts have found jurisdiction involve very significant meetings in New York. See, e.g., CutCo Indus., 806 F.2d at 367 (finding jurisdictional significance from meetings which were “instrumental” in defendant’s decision to expand business with plaintiff); Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57, 59 (2d Cir.1985) (finding jurisdiction where negotiations leading up to franchise agreements occurred in New York, fifty-four meetings in New York during life of agreement at which entire range of business was discussed); Liquid Carriers Corp. v. American Marine Corp., 375 F.2d 951, 955 (2d Cir.1967) (finding sufficient contacts from three New York meetings characterized as “substantial preliminary negotiations” for contracts). Conversely, where there are no substantively significant meetings in New York, courts have found no jurisdiction. See, e.g., ICC Primex Plastics Corp. v. LA/ES Laminati Estrusi Termoplastici S.P.A, 775 F.Supp. 650, 655 (S.D.N.Y.1991) (no jurisdiction where New York meeting did not “substantially advance” the relationship); Pneuma-Flo Sys., Inc. v. Universal Machinery Corp., 454 F.Supp. 858, 866 (S.D.N.Y.1978) (finding no jurisdiction where defendant’s high-level officers made several trips to New York to discuss finding new clients, market conditions, and trade prospects, since such meetings were “not essential to the ongoing relationship of the parties.”). I find that the six meetings between Shea and Kahn Lucas over three years were not significant enough to confer personal jurisdiction over Lark. The meetings were simply not essential to the continuance or development of the relationship between Kahn Lucas and Lark; they are more properly characterized as courtesy calls common in business dealings. Moreover, these meetings played no role in the formation of the relationship between the parties. This relationship began with Kahn Lucas’s representatives meeting with Lark in Asia—thus the most important part of the negotiations were conducted there. The maintenance of the relationship was conducted largely" }, { "docid": "21395799", "title": "", "text": "been developed. As noted above, Lark is a Hong Kong corporation, with registered offices in Hong Kong, and affiliated offices in other cities in Asia. Lark does not have an office in New York, is not registered to do business in New York, and has no employees in New York. Lark has been a buying agent for Kahn Lucas since 1988, and receives a seven percent commission based on the seller’s price. Lark is not a seller or manufacturer. Lark conducts its business from Asia, and that is where it was originally contacted by Kahn Lucas. Lark communicates with Kahn Lucas in New York through telephone, facsimile, and mail, and in face-to-face meetings when Kahn Lucas personnel travel to Asia. Kahn Lucas sent its orders for clothing to Lark’s Hong Kong offices; no contracts were received or signed by Lark in New York. James Shea (“Shea”), Lark’s General Merchandise Manager, met with Kahn Lucas in New York in December 1995. Shea reports directly to Lark’s owner. Lark believed that the meeting was to discuss Kahn Lucas’ claims against the Philippine manufacturers for the defective goods shipped to Sears. Instead, Shea was served with the Summons and Complaint in this action. This was the last of approximately six meetings in New York between Kahn Lucas and Lark personnel between 1993 and 1995. In the prior meetings the representatives of the two companies discussed generally how their business was doing, “what we can do to go forward,” clothing lines that would be produced for that particular season, prices and current volume, and Lark’s interest in assisting Kahn Lucas with its recently-acquired license from Disney for Lion King-related products. In these meetings, however, Shea and Kahn Lucas did not negotiate any particular pur chase. Thus, they did not discuss the commission structure, the volume of lines which Kahn Lucas was seeking to purchase in the coming season, or freight costs. The purchase orders on which this action is based contained a New York arbitration clause and a New York choice of law clause. In 1995, Lark acted as agent for six New York" }, { "docid": "14428858", "title": "", "text": "Majestic agreed to hire Mr. Yang as a Chief Engineer aboard the vessel. The agreement, which contains an arbitration clause, is signed by Mr. Yang and by Dongwon “on behalf of MAJESTIC BLUE FISHERIES, LLC.” •The district court compelled arbitration of the claims against Majestic, but denied the motion as to Dongwon. Dongwon now appeals. II. A. The Convention Act Does Not . Allow Non-Signatories or Non- . Parties to Compel Arbitration Dongwon seeks to compel arbitration under the Convention, on the Rec ognition and Enforcement of Foreign Ar-bitral Awards, 9 U.S.C. § 201 et seq. (“Convention Act”), which implements a treaty of the same name (“Convention Treaty”) regarding arbitration agreements entered into by foreign entities or individuals. See Rogers v. Royal Caribbean Cruise Line, 547 F.3d 1148, 1152-53 (9th Cir. 2008). A party seeking to compel arbitration under the Convention Act must prove the existence and validity of “an agreement in writing within the meaning of the Convention” Treaty. Balen v. Holland Am. Line Inc., 583 F.3d 647, 654-55 (9th Cir. 2009) (citation omitted). The Convention Treaty in turn defines an “agreement in writing” to “include an ar-bitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams.” Convention Treaty, art. 11(2) (emphasis added). Recognizing that it is neither a signatory nor a party to Mr. Yang’s employment agreement, Dongwon seeks to compel arbitration under the theory that the “signed by the parties” requirement in Article 11(2) applies only to “an arbitration agreement” and not “an arbitral clause in a contract.” We disagree. We do not write on a blank slate. In Kahn Lucas Lancaster, Inc. v. Lark International Ltd., the Secqnd Circuit conducted the first reasoned analysis of Article II(2)’s text and legislative history to reverse an order compelling arbitration because, as here, the arbitration clause in the contract was not signed by one of the litigants. 186 F.3d 210, 215-18 (2d Cir. 1999) abrogation on other grounds recognized by Sarhank Grp. v. Oracle Corp., 404 F.3d 657, 660 n.2 (2d Cir. 2005). Turning first to the" }, { "docid": "21395797", "title": "", "text": "OPINION & ORDER COTE, District Judge: On December 18, 1995, Kahn Lucas Lancaster, Inc. (“Kahn Lucas”), brought this diversity action against Lark International Ltd. (“Lark”) based on two purchase orders whereby Lark agreed to provide Kahn Lucas with agency services with respect to Kahn Lucas’s purchase of clothing manufactured in the Philippines for sale to Sears in the United States. Kahn Lucas is suing Lark for breach of contract, breach of warranties, negligence in performing its duties, and breach of fiduciary duty. Lark brings this motion to dismiss pursuant to Rule 12(b)(2) and (6), Fed.R.Civ.P., for lack of personal jurisdiction. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332. Background Plaintiff’s Complaint According to the Complaint, Kahn Lucas is a New York corporation which is in the children’s clothing business. Lark is a Hong Kong corporation which acts as an agent in Asia for United States clothing buyers. In early 1995, Kahn Lucas issued two purchase orders to Lark for finished fleece garments to be imported from the Philippines and sold to Sears in the Fall and Winter of 1995. The sales to Sears were firm orders from Sears for retail sale, and the purchase orders explicitly noted that the goods were intended for sale to Sears. According to the Complaint, in performing its agency services, Lark sub-contracted with Philippine manufactures for the production of the garments, arranged for the shipment of the goods to the United States, and inspected the goods prior to shipment. Ultimately there were several problems with the goods. Some of the garments were defective, some of the shipments contained the wrong colors or sizes, and many of the goods were never delivered or were delivered late. Because of these problems, Kahn Lucas could not fully meet Sears’ order, and Sears charged Kahn Lucas late fees and other costs. Kahn Lucas argues that these difficulties also led to its losing the opportunity to deal with Sears for the 1996 season and may have jeopardized its overall relationship with Sears. Jurisdictional Facts Through discovery conducted in connection with this motion, the following facts have" }, { "docid": "21395816", "title": "", "text": "While those decisions broadly expanded the power of this State to subject foreign corporations and nonresident individuals, not “present” in the forum, to the personal jurisdiction of its courts, the Legislature took no steps to exercise that power until the enactment of the CPLR. The courts likewise continued to apply the traditional “doing business” test though there were occasional suggestions that that standard might be relaxed in accordance with the later Supreme Court decisions. Id. at 437, 200 N.E.2d at 430. The Court went on to hold that it would be inappropriate to incorporate the International Shoe test retroactively into New York law, and essentially upheld the prior “doing business” test. In sum, between 1945 when International Shoe was decided, and 1962, when the CPLR was enacted, New York did not expand its jurisdiction to occupy the expanded area of personal jurisdiction after International Shoe. As one commentator has stated, the “classic ‘presence’ test is still followed in New York, even though, constitutionally, the test may be unnecessarily restrictive of state jurisdictional power.” Joseph M. McLaughlin, Practice Commentaries, 7B McKinney’s Consol. Laws of N.Y. Ann., C301:2, at 9 (McKinney 1990). Plaintiff does not attempt to argue that Lark has sufficient contacts with New York to establish “doing business” under the CPLR § 301 test, and thus there is no jurisdiction based on Kahn Lucas’ personally serving Shea in New York. 3. New. York Arbitration Clause Finally, Kahn Lucas contends that this Court has jurisdiction over Lark because the purchase orders issued by Kahn Lucas contain a New York arbitration clause. The clause states that Any controversy arising out of or relating to this Order ... shall be resolved by arbitration in the City of New York____ The parties consent to the application of the New York or Federal Arbitration Statutes and to the jurisdiction of the Supreme Court of the State of New York, and of the United States District Court of the South ern District of New York, for all purposes in connection with said arbitration---- In Merrill Lynch, Pierce, Fenner & Smith Inc. v. Lecopulos, 553 F.2d 842," }, { "docid": "19604070", "title": "", "text": "a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration.\" New York Convention, Article II, ¶ 1. Article II further states that \"[t]he term 'agreement in writing' shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams.\" New York Convention, Article II, ¶ 2. The requirement that the agreement to arbitrate be \"signed by the parties\" applies to both an arbitral clause and an arbitration agreement. Yang v. Majestic Blue Fisheries, LLC , 876 F.3d 996 (9th Cir. 2017) ; Standard Bent Glass Corp. v. Glassrobots Oy , 333 F.3d 440, 449 (3d Cir. 2003) ; Kahn Lucas Lancaster, Inc. v. Lark Int'l Ltd. , 186 F.3d 210, 218 (2d Cir. 1999), partially abrogated on other grounds by Sarhank , 404 F.3d at 660 n.2. But see Sphere Drake Ins. PLC v. Marine Towing, Inc. , 16 F.3d 666 (5th Cir. 1994) (reading \"signed by the parties\" to only modify \"an arbitration agreement\" and not \"an arbitral clause in a contract\" and finding a signature was not required to compel arbitration under an arbitration provision of an insurance contract). The district court determined that GE Energy and Outokumpu were parties to the Contracts by tracing the definitions of \"Buyer\" and \"Seller,\" which included subcontractors unless explicitly stated otherwise, and the definition of \"parties\" as \"Buyer\" and \"Seller.\" Inserting these definitions into the arbitration clause, the district court found that there was an agreement in writing under the meaning of the Convention which required Outokumpu and GE Energy to arbitrate. However, GE Energy is undeniably not a signatory to the Contracts. At the time the Contracts were signed by Outokumpu and Fives, GE Energy was a stranger to the Contracts and, at most, a potential subcontractor. Private parties-here Outokumpu and Fives-cannot contract around the Convention's requirement that the parties actually sign an agreement to arbitrate their disputes in order to compel arbitration. New York Convention, Article II, ¶ 1; see also Czarina, L.L.C. v. W.F. Poe Syndicate , 358" }, { "docid": "21395798", "title": "", "text": "Sears in the Fall and Winter of 1995. The sales to Sears were firm orders from Sears for retail sale, and the purchase orders explicitly noted that the goods were intended for sale to Sears. According to the Complaint, in performing its agency services, Lark sub-contracted with Philippine manufactures for the production of the garments, arranged for the shipment of the goods to the United States, and inspected the goods prior to shipment. Ultimately there were several problems with the goods. Some of the garments were defective, some of the shipments contained the wrong colors or sizes, and many of the goods were never delivered or were delivered late. Because of these problems, Kahn Lucas could not fully meet Sears’ order, and Sears charged Kahn Lucas late fees and other costs. Kahn Lucas argues that these difficulties also led to its losing the opportunity to deal with Sears for the 1996 season and may have jeopardized its overall relationship with Sears. Jurisdictional Facts Through discovery conducted in connection with this motion, the following facts have been developed. As noted above, Lark is a Hong Kong corporation, with registered offices in Hong Kong, and affiliated offices in other cities in Asia. Lark does not have an office in New York, is not registered to do business in New York, and has no employees in New York. Lark has been a buying agent for Kahn Lucas since 1988, and receives a seven percent commission based on the seller’s price. Lark is not a seller or manufacturer. Lark conducts its business from Asia, and that is where it was originally contacted by Kahn Lucas. Lark communicates with Kahn Lucas in New York through telephone, facsimile, and mail, and in face-to-face meetings when Kahn Lucas personnel travel to Asia. Kahn Lucas sent its orders for clothing to Lark’s Hong Kong offices; no contracts were received or signed by Lark in New York. James Shea (“Shea”), Lark’s General Merchandise Manager, met with Kahn Lucas in New York in December 1995. Shea reports directly to Lark’s owner. Lark believed that the meeting was to discuss Kahn" }, { "docid": "19604069", "title": "", "text": "motion to remand because the district court must determine whether the parties before the court agreed to arbitrate their dispute. Again, a party may compel arbitration under the Convention only if: (1) there is an agreement in writing within the meaning of the Convention; (2) the agreement provides for arbitration in the territory of a signatory of the Convention; (3) the agreement arises out of a legal relationship, whether contractual or not, which is considered commercial; and (4) a party to the agreement is not an American citizen, or that the commercial relationship has some reasonable relation with one or more foreign states. Bautista , 396 F.3d at 1294 n.7. Here, our inquiry starts and ends with the first factor because we find that there is no agreement in writing within the meaning of the Convention. Under the New York Convention, \"[e]ach Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration.\" New York Convention, Article II, ¶ 1. Article II further states that \"[t]he term 'agreement in writing' shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams.\" New York Convention, Article II, ¶ 2. The requirement that the agreement to arbitrate be \"signed by the parties\" applies to both an arbitral clause and an arbitration agreement. Yang v. Majestic Blue Fisheries, LLC , 876 F.3d 996 (9th Cir. 2017) ; Standard Bent Glass Corp. v. Glassrobots Oy , 333 F.3d 440, 449 (3d Cir. 2003) ; Kahn Lucas Lancaster, Inc. v. Lark Int'l Ltd. , 186 F.3d 210, 218 (2d Cir. 1999), partially abrogated on other grounds by Sarhank , 404 F.3d at 660 n.2. But see Sphere Drake Ins. PLC v. Marine Towing, Inc. , 16 F.3d 666 (5th Cir. 1994) (reading \"signed by the parties\" to only modify \"an arbitration agreement\"" }, { "docid": "14428859", "title": "", "text": "The Convention Treaty in turn defines an “agreement in writing” to “include an ar-bitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams.” Convention Treaty, art. 11(2) (emphasis added). Recognizing that it is neither a signatory nor a party to Mr. Yang’s employment agreement, Dongwon seeks to compel arbitration under the theory that the “signed by the parties” requirement in Article 11(2) applies only to “an arbitration agreement” and not “an arbitral clause in a contract.” We disagree. We do not write on a blank slate. In Kahn Lucas Lancaster, Inc. v. Lark International Ltd., the Secqnd Circuit conducted the first reasoned analysis of Article II(2)’s text and legislative history to reverse an order compelling arbitration because, as here, the arbitration clause in the contract was not signed by one of the litigants. 186 F.3d 210, 215-18 (2d Cir. 1999) abrogation on other grounds recognized by Sarhank Grp. v. Oracle Corp., 404 F.3d 657, 660 n.2 (2d Cir. 2005). Turning first to the text, the court concluded that the comma before the phrase “signed by -the parties”, signaled, that it modified both “an arbitral clause in a contract” and “an arbitration agreement ” Id. at 217. The court relied on two common canons pf construction. First, it explained that, under the rule of punctuation, a modifying phrase that .is set off from a series of antecedents by a comma applies to each of those antecedents. Id. at 216-17. The court reasoned that interpreting the phrase “signed by the parties” to modify only an “arbitration agreement” rendered the comma superfluous, thereby violating the rule against sur-plusage. Id. at 217. Next, the court considered not only the final English text of the Convention Treaty but also the official French and Spanish texts, each of which used a plural form of the word “signed,” consistent with the conclusion that the signature requirement applies not only to an “arbitration agreement” but also to an “ar-bitral clause in a contract.” Id. at 216, 217. Finally, cognizant of the Supreme Court’s instruction that an" } ]

[ { "docid": "8688678", "title": "", "text": "proved either by a literal reading on the patent claims or under the doctrine of equivalents. DIRECT INFRINGEMENT BY LITERAL READING ON THE CLAIMS In determining whether an accused device infringes the patent, the court must initially look at the language of the claims. If the accused device falls clearly within a literal reading on the claims, there is direct infringement and that is the end of it. Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 607, 70 S.Ct. 854, 94 L.Ed. 1097, 1101 (1950). The construction of the patent claims is a question of law for the court. Doble Engineering Co. v. Leeds & Northrup Co., 134 F.2d 78, 83 (1st Cir. 1943); Vanderveer v. Erie Malleable Iron Co., 238 F.2d 510, 514 (3d Cir. 1957), cert. den., 353 U.S. 937, 77 S.Ct. 815, 1 L.Ed.2d 760; Cold Metal Process Co. v. E. W. Bliss Co., 285 F.2d 231, 239 (6th Cir. 1960), cert. den., 366 U.S. 911, 81 S.Ct. 1085, 6 L.Ed.2d 235 (1961); Solomon v. Renstrom, 150 F.2d 805, 808 (8th Cir. 1945); Del Francia v. Stanthony Corp., 278 F.2d 745, 747 (9th Cir. 1960). The court may have recourse to the patent specification, drawings, and file wrapper (a shorthand phrase used in the trade for the prosecution papers in the United States Patent Office) to discern the meaning of terms of art. Sometimes a term of art appears in the patent claims, the meaning of which is subject to dispute by those persons ordinarily skilled in the art. Since the patent applicant is his own lexicographer and his own grammarian, no genuine issue of fact as to the meaning of a term used in the claims will be considered by the court to exist if the meaning is made incontrovertibly clear elsewhere in the patent or in the file wrapper. Lincoln Stores, Inc. v. Nashua Mfg. Co., 157 F.2d 154, 158 (1st Cir. 1946), cert. den., 329 U.S. 811, 67 S.Ct. 623, 91 L.Ed. 692 (1947); Frederick Hart & Co. v. Recordograph Corp., 169 F.2d 580, 583 (3d Cir. 1948); Morpul," } ]

[ { "docid": "516103", "title": "", "text": "court must consider the usage and meaning of the term as used in the relevant context of the specification. In general, most references to “bus” in the specification do not limit the ordinary meaning of this term. Only two references potentially limit the meaning of “bus” in the context of the specification. In the Summary of the Invention, the pat-entee stated that the “present invention” includes a bus for carrying substantially all address, data, and control information. '918 patent, col. 3,11. 50-60. The patentee further stated that “the bus carries device-select information without the need for separate device-select lines connected directly to individual devices.” Id. In the Detañed Description, the patentee stated: The present invention is designed to provide a high speed, multiplexed bus for communication between processing devices and memory devices .... The bus carries substantially all address, data and control information needed by devices for communication with other devices on the bus. In many systems using the present invention, the bus carries almost every signal between every device in the entire system. There is no need for separate device-select lines since device-select information for each device on the bus is carried over the bus. There is no need for separate address and data lines because address and data information can be sent over the same lines. ’918 patent, col. 5,11. 36-46. See also '918 patent, col. 5, 11. 52-53. WMle clear language characterizing “the present invention” may limit the ordinary meaning of claim terms, see SciMed, 242 F.3d at 1343; Bell Atlantic, 262 F.3d at 1268, such language must be read in context of the entire specification and the prosecution history. Although the above references, taken alone, may suggest some limitation of “bus” to a multiplexing bus, the remainder of the specification and prosecution history shows that Rambus did not clearly disclaim or disavow such claim scope in this case. See Inverness Med. Switz. GmbH v. Princeton Biomeditech Corp., 309 F.3d 1365, 1372, 64 USPQ2d 1926, 1932 (Fed.Cir.2002) (statements made during prosecution were not a clear and unambiguous disclaimer of a claim scope). Thus, Ram-bus did not limit" }, { "docid": "6238656", "title": "", "text": "ballast circuitry. The dissipated current can destroy the ballast and create an electric shock hazard for someone servicing the lamp. . U.S. Patent No. 5,436,529 (“the '529 patent”), assigned to Lighting Ballast LLC (“Lighting Ballast”), discloses an electronic ballast with the ability to shield itself from destructive levels of current when a lamp is removed or becomes defective. '529 patent col. 211. 39^47. Claim 1 recites: 1. An energy conversion device employing an oscillating resonant converter producing oscillations, having DC input terminals producing a control signal and adapted to power at least one gas discharge lamp having heatable filaments, the device comprising: voltage source means providing a constant or variable magnitude DC voltage between the DC input terminals; output terminals connected to the filaments of the gas discharge lamp; control means capable of receiving control signals from the DC input terminals and from the resonant converter, and operable to effectively initiate the oscillations, and to effectively stop the oscillations of the converter; and direct current blocking means coupled to the output terminals and operable to stop flow of the control signal from the DC input terminals, whenever at least one gas discharge lamp is removed from the output terminals or is defective. '529 patent col. 11 11. 49-68 (emphasis added to relevant terms). B. PROCEDURAL HISTORY On February 24, 2009, Lighting Ballast filed suit against ULT asserting infringement of the '529 patent. The parties engaged in claim construction briefing and the court held a hearing thereon. ULT argued that the term “voltage source means” is governed by 35 U.S.C. § 112 ¶ 6 and that the claims are invalid under 35 U.S.C. § 112 ¶ 2 as indefinite because the specification fails to disclose what structure corresponded to the “voltage source means” limitation. The district court initially agreed with ULT. Lighting Ballast filed a motion for reconsideration. The district court reversed course, finding that its initial construction of “voltage source means” was incorrect. The district court noted that its prior ruling “unduly discounted the unchallenged expert testimony” and “exalted form over substance and disregarded the knowledge of a person of" }, { "docid": "21146968", "title": "", "text": "reagent, a second valve selectively connecting said second reagent in fluid communication with said binding species to return said binding species to a regenerated condition, and control means for automatically operating valves. '502 patent col.13 ll.25-35, col.16 ll1.20-31 (claim terms at issue emphasized). Claims 14-17 are dependent from claim 13. The district court began its construction of the term “control means” with the observation that if a claim element contains the term “means” and recites a function, there is a presumption that § 112, ¶ 6 applies. Biomedino, slip op. at 8. Concluding that the inclusion of the word “control” did not identify structure and thus did not overcome the presumption that the claim limitation was a means-plus-function limitation, the district court began a § 112, ¶ 6 analysis. The only references in the specification to the “control means” are a box labeled “Control” in Figure 6 and a statement that the regeneration process of the invention “may be controlled automatically by known differential pressure, valving and control equipment.” '502 patent col.ll 11.55-58. From this, the district court concluded: The specification says nothing more than that unspecified equipment may be used to control the regeneration process. The fact that one skilled in the art could envision various types of equipment capable of automatically operating valves does not change the fact that no structure capable of performing that function was disclosed by the inventor. Biomedino, slip op. at 11. As a result, the court held that “[t]he failure to disclose a structure corresponding to the ‘control means’ function makes claims 13-17 and claim 40 of indefinite scope in violation of § 112, ¶ 2 of the Patent Act.” Id. Biomedino appeals, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). II “A determination that a patent claim is invalid for failure to meet the definiteness requirement of 35 U.S.C § 112, paragraph 2, is ‘a legal conclusion that is drawn from the court’s performance of its duty as the construer of patent claims[, and i]ndefiniteness, therefore, like claim construction, is a question of law that we review de novo.’ ”" }, { "docid": "6586973", "title": "", "text": "(b) memory storage means for retaining an individual subscriber box deciphering key, at least one changeable group deciphering key, and one or more addresses specific to a subscriber and its specified group or groups, (e) and a control channel decryptor having a control channel input and being connected to said memory storage and service data decryptor, comparison means for determining if a control channel message is addressed to a specific subscriber, said control channel decryptor using the box deciphering key or a group deciphering key to decipher a control message as to a change in the service deciphering key or a change in or formation of a group deciphering key. '020 patent at col. 6, l. 56—col. 7, l. 7. D. Prosecution History During prosecution, the examiner rejected all pending claims- of the application that issued as the '020 patent as indefinite under 35 U.S.C. § 112, ¶ 2, explaining that, The claims have certain “Key” modifiers, i.e. “box”, “group”, “service” which have no accepted meaning within the art thus [sic] are not understood. Applicant should make some attempt to differentiate the claimed keys and prevent them from being taken as the same element, i.e. the “box”, “group” and “service” key are the same key. Agreeing that the “key” modifiers have no accepted meaning in the art, applicant responded: Referring first to the Examiner’s rejection under 35 U.S.C. § 112 on the basis that the claims have certain “key” modifiers which have no accepted meaning in the art, we believe the Examiner is well aware of the substantial body of law which states that a patentee or in this case a patent applicant may be his own lexicographer. We believe that the modifiers for key — “box”, “group” and “service” — are very adequately described in the specification and therefore there is a complete foundation for the use of these terms in the claims. Applicant concluded that “[ejverything considered, we do not believe there is any accepted terminology in the art and since the applicants have described their specific keys in the specification, we believe that the claims are not" }, { "docid": "22412104", "title": "", "text": "what a rose is, but also unsure whether a rose is a rose. Thus we find that a claim cannot be interpreted without going beyond the claim itself. No matter how clear a claim appears to be, lurking in the background are documents that may completely disrupt initial views on its meaning. The necessity for a sensible and systematic approach to claim interpretation is axiomatic. The Alice-in-Wonderland view that something means whatever one chooses it to mean makes for enjoyable reading, but bad law. Claims are best construed in connection with the other parts of the patent instrument and with the circumstances surrounding the inception of the patent application. Doble Engineering Co. v. Leeds & Northrup Co., 134 F. 2d 78 (1st Cir. 1943). In utilizing all the patent documents, one should not sacrifice the value of these references by the “unimaginative adherence to well-worn professional phrases.” Frankfurter, supra, at 529. Patent law is replete with major canons of construction of minor value which have seldom provided useful guidance in the unraveling of complex claims. Instead, these canons have only added confusion to the problem of claim interpretation. Doble Engineering Co. v. Leeds & Northrup, supra, at 84. ii In deriving the meaning of a claim, we inspect all useful documents and reach what Justice Holmes called the “felt meaning” of the claim. In seeking this goal, we make use of three parts of the patent: the specification, the drawings, and the file wrapper. Specification.—Section 112 of the 1952 Patent Act requires the specification to describe the manner and process of making and using the invention so that any person skilled in the patent’s art may utilize it. In serving its statutory purpose, the specification aids in ascertaining the scope and meaning of the language employed in the claims inasmuch as words must be used in the same way in both the claims and the specification. U.S. Pat. Off. Eule 75(d). The use of the specification as a concordance for the claims is accepted by almost every court, and is a basic concept of patent law. Most courts have simply" }, { "docid": "23214885", "title": "", "text": "“automation code” is located externally and is used to boot the computer in automation mode. Thus, we conclude that here the patentee chose a phrase that “so deprives the claim of clarity as to require resort to the other intrinsic evidence for a definite meaning.” CCS Fitness, 288 F.3d at 1366-67, 62 USPQ2d at 1663 (citing Johnson Worldwide, 175 F.3d at 990, 50 USPQ2d at 1610; Gart, 254 F.3d at 1341, 59 USPQ2d at 1295 (internal quotation marks omitted)). A look at the specification demonstrates the correctness of the district court’s construction. Because here the patentee has made only a limited disclosure, the only other intrinsic evidence we can consult is the description of the preferred embodiment. That description references an “automation partition on the hard disk populated with a common operating system (such as PC DOS), LAN drivers for the NIC, and a program for reading a database on the network server to ascertain the automation commands to be executed.” '593 patent, col. 3, lines 50-55; see also id. at col. 6, lines 6-13. Therefore, the court did not err by looking to that description to define an otherwise unclear claim limitation. We affirm the district court’s construction of “automation code.” F. Means-Plus-Function Limitations. Section 112, paragraph 6, provides that: An element of a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof. 35 U.S.C. § 112, ¶ 6 (2000). Where a claim uses the word “means” to describe a limitation, we presume “that the inventor used the term advisedly to invoke the statutory mandates for means-plus-function clauses.” Sage Prods., Inc. v. Devon Indus., Inc., 126 F.3d 1420, 1427, 44 USPQ2d 1103, 1109 (Fed.Cir.1997) (citation omitted). This presumption can be rebutted where the claim, in addition to the functional language, recites structure sufficient to perform the claimed function in its entirety. Id. at 1427-28, 126 F.3d 1420, 44 USPQ2d" }, { "docid": "22313018", "title": "", "text": "Claim 1 of the patent at issue includes the disputed claim terms: In a computer or video game system, apparatus for providing, in response to signals generated by said computer or video game system, a tactile sensation to a user of said computer or video game system, said apparatus comprising: & flexible pad; a plurality of actuators, attached to said pad, for selectively generating tactile sensation; and a control circuit ... for generating a control signal to control activation of said plurality of actuators .... (emphasis added). I. “attached to said pad” Appellants argue that the district court erred by holding that the specification implicitly defined “attached” to mean “affixed to an exterior surface.” They argue that the term does not require any construction and that the plain and ordinary meaning includes affixing an item to either an exterior or an interior surface. They contend that the specification explicitly states whether an attachment is to an interior or exterior surface: “a vibratory actuator can be attached to [the] outer side of the throttle handle.” Appellant’s Br. 13 (quoting '941 patent col. 39 11. 58-60). They argue this shows that when the applicant wished to distinguish an internal from an external attachment, he did so with deliberate, express language. Thus, appellants argue that the specification contemplates “attached” to have its plain and ordinary meaning — attached to either an interior or exterior surface. Finally, appellants argue that the fact that claim 10 includes the word “embedded” does not mean that “attached” can only mean connected to an exterior surface. Rather, appellants argue that “embedded” is merely a narrower term that includes only attachment to an interior surface. Sony responds that the patent clearly identified two different connections, “attached to” and “embedded within.” It argues that in every instance where the specification uses the term “attached,” it refers to an attachment to an outer surface. Conversely, in every embodiment where the actuator is placed inside a housing, the specification uses the term “embedded.” See, e.g., '941 patent col. 32 1. 66 (“embedded within or attached to”). Our case law is clear, claim" }, { "docid": "16453339", "title": "", "text": "during steady-state and transient conditions as a function of engine speed and mass air flow. Both have means for limiting the fuel flow during transient conditions within predetermined limits and both have means for sensing the conditions of the mass of air flowing through the engine and modifying the fuel flow rate as a function of those sensed conditions. With both systems, the throttle lever may be moved abruptly and the system will automatically adjust the fuel flow rate while maintaining that rate within acceptable predetermined limits. F. Claims 1, 3, and 8: Claims 1, 3, and 8 define the invention insofar as it relates to control of fuel flow as a function of engine speed and do not, therefore, pertain to the concept of controlling fuel flow by sensing changes in air pressure and/or temperature. These claims do not include the \"means plus function” language of claims 4, 5, 7, 11-14, and 17 with respect to sensing changes in pressure and/or temperature. In view of our conclusion that the latter group of claims have been infringed, it is unnecessary to consider or decide whether claims 1, 3 and 8 have also been infringed. We leave that question open. Ill Kunz patent The Kunz invention uses the basic principles of scheduling fuel flow described in the ’275 (Mock) patent but employs a number of three-dimensional (3-D) cams that are indexed by signals derived from various engine-operating conditions for controlling the flow. The surfaces of the 3-D cams are contoured as a function of various engine parameters and, in effect, serve to define a boundary condition. Kunz suggested the use of three cams, a deceleration cam, an acceleration cam, and a surge cam. The followers associated with each of the cams are positioned in response to changes in the engine parameters and these followers, cooperating with the indexed surfaces of the cams, position a pair of valve-limiting stops to establish an acceleration, deceleration limit for the control system, thereby avoiding over-temperature during acceleration and engine die-out upon deceleration. Kunz was the first to employ 3-D cams with the Mock mode of" }, { "docid": "3080139", "title": "", "text": "will be rebutted if the inventor has disavowed or disclaimed scope of coverage, by using words or expressions of manifest exclusion or restriction, representing a clear disavowal of claim scope. Id. 1313 (citing Teleflex, 299 F.3d at 1324). The district court noted that the specification of the '202 patent does not define “high frequency” in a way that is at variance with the ordinary meaning of 3-30 MHz. Summary Judgment Order at 25. The court stated that “the specification does not clearly imply or express a special definition for the term ‘high frequency.’ ” Id. at 27. We agree. Nowhere in the specification does the patentee, acting as his or her own lexicographer, clearly set forth a definition of “high frequency” different from its ordinary and customary meaning. If anything, the specification of the '202 patent supports the ordinary meaning of “high frequency” as being 3-30 MHz. It does so because it provides a definition for very high frequency, or VHF, as 40-300 MHz. '202 patent, col. 1, 11. 14-16 (stating that “[c]ommonly the range of frequencies employed extends throughout the VHF spectrum, for example, from about 4.0-300 MHz” (emphasis added)). Under these circumstances, we conclude that since the patentee defined a range for VHF, it certainly could have defined a range for high frequency and that, since it did not, high frequency should be given its ordinary and customary meaning of 3-30 MHz. We have noted that, like the specification, the prosecution history may demonstrate that the patentee intended to deviate from a term’s ordinary and accustomed meaning, i.e., if it shows that the patentee characterized the invention using words or expressions of manifest exclusion or restriction before the United States Patent and Trademark Office. Teleflex, 299 F.3d at 1326. The prosecution history limits the interpretation of claims so as to exclude any interpretation that may have been disclaimed or disavowed during prosecution in order to obtain claim allowance. Id. In this case, however, nothing in the prosecution history demonstrates that the patentee intended to deviate from the term “high frequency” ‘s ordinary and accustomed meaning of 3-30 MHz." }, { "docid": "12315083", "title": "", "text": "c. “Correct Combination” (Claim 3) 82. The claim term “correct combination” defines the function of the lever moving element moving means and defines when the moving element is activated. Thus, the term defines and limits the function of a particular claim element. This term should be construed to have the same meaning as defined above for “combination”, and refers to a particular type of combination which will cause the lock to open. Thus, “correct combination”, as used in the ’656 patent claims, means the proper ordered sequence of letters or numbers which must be entered to open the lock. d. “Detent” (Claim 1) 83. As defined in the ’656 specification, a “detent” is a ball comprising a spherical or curved surface 96 which can project, extend or protrude outwardly of the solenoid housing. Col. 6, lines 12-22; Col. 7, lines 31-34; Col. 7, lines 43-46; Col. 7, lines 51-56; Figures 1, 3, 4-7. In the specification, “detent” is not described or illustrated in any way other than as a spherical ball capable of being projected above the surface of the solenoid housing. Thus, this definition is of controlling significance. McGill, Inc. v. John Zink Co., 736 F.2d 666, 674 (Fed.Cir.1984). 84. In the usual engineering sense, a “de-tent” is a spring-loaded element that is driven into either a recessed area in another component or a slot or slide. A detent is almost without exception spring-loaded, or a spring-loaded component that goes into a mating hold slot, ridge, or the like. A detent may also be described as a mechanism that slides two pieces of metal together with a spring and ball to lock the pieces of metal together. A tooth on a gear is not considered a “detent”. 85. The claims of the ’656 patent also define a “detent” in terms of a member movable from one position to another (Claim 1) and where the “detent” protrudes from another member (Claims 8, 9, 14, 21). The claims of the ’656 patent also define a “de-tent” in the conventional sense, as “spring-biased”. See claims 10, 11, 12, 13, 15, 16, 17," }, { "docid": "13222105", "title": "", "text": "in the art in no way relieves the patentee of adequately disclosing sufficient structure in the specification”). That ordinarily skilled artisans could carry out the recited function in a variety of ways is precisely why claims written in “means-plus-function” form must disclose the particular structure that is used to perform the recited function. By failing to describe the means by which the access control manager will create an access control list, Blackboard has attempted to capture any possible means for achieving that end. Section 112, paragraph 6, is intended to prevent such pure functional claiming. Aristocrat, 521 F.3d at 1333. We thus agree with the district court that the '138 patent discloses insufficient structure to perform the function of “assigning a level of access to and control of each data file based on a user of the system’s predetermined role in a course.” TV In summary, we affirm the district court’s decision that claims 1-35 are inval id as indefinite. Because we hold that under the proper construction of claim 36, claims 36-38 are anticipated as a matter of law, we reverse the district court’s failure to grant JMOL on that issue. We do not reach Desire2Learn’s assertion that claims 36-38 are obvious. We also do not address the parties’ contentions with respect to infringement of those claims. Based on our rulings in appeals No. 2008-1368 and 2008-1396, Blackboard’s appeal in No. 2008-1548, which pertains to the award of costs in the district court, is dismissed as moot. Each party shall bear its own costs for these appeals. AFFIRMED IN PART, REVERSED IN PART, and DISMISSED IN PART. . When the '138 patent refers to the electronic representation of the user in the specification, it typically uses the term \"user account,” not the term \"user” alone. See 138 patent, col. 5, ll. 20-23; col. 22, ll. 3, 9; col. 26, line 23." }, { "docid": "18935566", "title": "", "text": "district court, in its original claim construction order, construed the term to mean a “model of typical attack-free computer system usage that employs probability.” J.A. 10. The district court furthered construed the term “normal computer system usage” to mean “typical attack-free computer system usage,” relying on the specification. Id. After Columbia moved for clarification of the district court’s construction of this term, the district court clarified that the model described in the '084 and '306 patents must be generated with “only attack-free data.” J.A. 12. Again, contrary to Phillips, Columbia argues that the district court erred in departing from the plain and ordinary meaning and instead relied on the specification to erroneously import a negative limitation from the specification despite no “clear and unmistakable” disclaimer of the claim scope. The district court was correct in finding that, according to the patentee’s own words in the specification, the “probabilistic model of normal computer system usage” is built using only attack-free data. According to the specification, the model is built by “[gathering features from the records of normal processes that access the Windows registry.” '084 patent, col. 3 11. 31-33 (emphasis added); '306 patent, col. 3 11. 32-33. The invention then takes these features (which were gathered from normal processes) and builds “a probabilistic model of normal computer system usage based on records of a plurality of processes that access the Windows registry and that are indicative of normal computer system usage, e.g., free of attacks.” '084 patent, col. 4 11. 3-6 (emphasis added); '306 patent, col. 4 11. 4-8. The specification consistently describes an implementation where the inventors ran ordinary programs to “generate normal data for building an accurate and complete training model.” '084 patent, col. 14 11. 55-59; '306 patent, col. 14 11. 55-59; see also id. col. 8 11. 12-14 (“statistics of the values of these features over normal data are used to create the probabilistic model of normal registry behavior”); id. col. 10 11. 33-35 (probability “estimated over the normal data”); id. col. 11 11. 17-18 (“From the normal data ... ”). Nothing in the specification describes any" }, { "docid": "23214884", "title": "", "text": "the specification. Here, however, unlike with our analysis of “boot selection flag,” a look at the individual words in the phrase is also unhelpful. “Automation” is defined as “making an apparatus, a process, or a system operate automatically.” Webster’s Ninth New Collegiate Dictionary (1987). It follows that “automation code” is that code which boots the system “automatically.” Altiris argues that this indicates that the “automation code” is any code other than the normal booting code for booting the computer without manual intervention. This is far from a clear definition. Indeed, it is so broad as to lack significant meaning. The surrounding claim language is similarly unhelpful. The limitation appears only once in claim 1: “transferring control of said computer system to auto mation code.... ” This use tells us nothing about what the “automation code” is; it only states that control is transferred to it from the normal booting code. The surrounding limitations mention an “external source of commands” but do not describe what those commands are. Indeed, the claim language indicates only that the “automation code” is located externally and is used to boot the computer in automation mode. Thus, we conclude that here the patentee chose a phrase that “so deprives the claim of clarity as to require resort to the other intrinsic evidence for a definite meaning.” CCS Fitness, 288 F.3d at 1366-67, 62 USPQ2d at 1663 (citing Johnson Worldwide, 175 F.3d at 990, 50 USPQ2d at 1610; Gart, 254 F.3d at 1341, 59 USPQ2d at 1295 (internal quotation marks omitted)). A look at the specification demonstrates the correctness of the district court’s construction. Because here the patentee has made only a limited disclosure, the only other intrinsic evidence we can consult is the description of the preferred embodiment. That description references an “automation partition on the hard disk populated with a common operating system (such as PC DOS), LAN drivers for the NIC, and a program for reading a database on the network server to ascertain the automation commands to be executed.” '593 patent, col. 3, lines 50-55; see also id. at col. 6, lines 6-13." }, { "docid": "12315120", "title": "", "text": "structure, described in equivalent functional language, and therefore should be interpreted the same. 153. In the ’656 patent specification, for the part identified as the “retaining element”, the lever is held up out of contact with the dial cam by a cantilever arm which is an integral part of the lever and which includes a movable spring-loaded pin contained within a bore which operates to create a force when released rotating the lever about its pivot axis to bring the lock lever out of engagement with the dial cam. ee. “Solenoid” (Claim 1) 154. As previously noted, the words of a claim will be given their ordinary meaning unless it appears that the inventor used them differently. Hoganas AB v. Dresser Industries, Inc., 9 F.3d 948, 951 (Fed.Cir.1993). The ’656 patent uses the word “solenoid” in its normal sense to describe a conventional, electrically-operated member which linearly pulls an iron core into a coil. Col. 1, line 30; Col. 1, line 36; Col. 6, lines 43 — 46. In the ’656 patent specification, the solenoid is consistently described in terms of a plunger 98 contained within a spool supporting a coil 108 which actuates the solenoid plunger to move it linearly, with a solenoid housing which can move linearly independently of the solenoid plunger. Col. 2, lines 47, 51, 55, 61; Col. 4, lines 37-38, 46; Col. 5, lines 43, 62, 67; Col. 6, lines 9-57; Col. 7, lines 5, 8, 11, 13-16, 26; Col. 8, line 7; Figs. 3, 5, 6, 7, 9,10. There is no suggestion in the ’656 patent that the patentee intended the term “solenoid” to include anything other than the conventionally described mechanism. 155. Other claims of the ’656 patent also define a “solenoid” in terms of a solenoid housing enclosing a plunger. See, e.g., Claims 9, 16. Other claims of the patent may be used to determine the scope of the claim at issue. McGill, Inc. v. John Zink Co., 736 F.2d 666, 674 (Fed.Cir.1984). 156. The ’656 patent thus defines the “solenoid” as a structural element where (1) the solenoid is actuated only" }, { "docid": "14715764", "title": "", "text": "second issued patent is not invalid for this reason alone. 10. The one year statutory bars to patentability under Title 35 U.S. C. § 102 apply as of the date the subject matter of an invention was first disclosed in a patent application, not as of the date a claim thereto was first offered. Claims of a patent are not invalid if there was a publication, public use, or sale of the invention more than a year before the claims were first presented but not more than a year prior to the filing of the application disclosing the invention. 11. Where infringement is charged of a claim for a combination having one or more elements expressed as a means or step for performing a specific function without the recital of structure, material, or acts in support thereof, Title 35 U.S.C. § 112 requires construction of the claim to cover both the corresponding structure, material, or acts described in the specification and equivalents thereof. What constitutes equivalency must be determined against the context of the patent, the prior art, and the particular circumstances of the case. The first inquiry as to infringement of such claim is whether there is infringement of the terms of the claim, but this does not end the matter. Infringement is found where application of claim phraseology reads on the accused device and there is real identity of means, operation and result between the accused device and of the device shown in the patent. 12. A patentee is entitled to the broadest range of equivalents consistent with the prior art and with the file wrapper history where his patent is a pioneer in the field, where the invention has had great practical impact on the art, and where the infringer has relied on the patentee’s teachings to derive its own product. 13. Infringement is not avoided by varying the apparatus shown in the disclosure of a patent, whether the variation be an improvement or an impairment. An equivalent is no less an equivalent merely because it was unfamiliar at the time of the invention. 14. File wrapper" }, { "docid": "22412105", "title": "", "text": "Instead, these canons have only added confusion to the problem of claim interpretation. Doble Engineering Co. v. Leeds & Northrup, supra, at 84. ii In deriving the meaning of a claim, we inspect all useful documents and reach what Justice Holmes called the “felt meaning” of the claim. In seeking this goal, we make use of three parts of the patent: the specification, the drawings, and the file wrapper. Specification.—Section 112 of the 1952 Patent Act requires the specification to describe the manner and process of making and using the invention so that any person skilled in the patent’s art may utilize it. In serving its statutory purpose, the specification aids in ascertaining the scope and meaning of the language employed in the claims inasmuch as words must be used in the same way in both the claims and the specification. U.S. Pat. Off. Eule 75(d). The use of the specification as a concordance for the claims is accepted by almost every court, and is a basic concept of patent law. Most courts have simply stated that the specification is to be used to explain the claims; others have stated the proposition in different terms, but with the same effect. The following expressions are indicative of this latter approach: (1) “* * * [A] patentee’s broadest claim can be no broader than his actual invention.” Kemart Corp. v. Printing Arts Research Laboratories, Inc., 201 F. 2d 624, 629 (9th Cir. 1953), (2) “* * * [E]ecourse must be had to the specification to see how far the means there disclosed correspond with those made by the defendant.” Perry v. United States, 112 Ct. Cl. 1, 30, 76 F. Supp. 503, 505 (1948); Grubman Engi neering & Mfg. Co. v. Goldberger, 47 F. 2d 151, 152 (2d Cir. 1931), (3) “While the specification may be referred to in order to limit the claim, it can never be available to expand it.” Hanovia Chemical Mfg. Co. v. David Buttrick Co., 39 F. Supp. 646 (D. Mass. 1941), aff'd 127 F. 2d 888 (1st Cir. 1942). The specification “set[s] forth the best mode" }, { "docid": "23608209", "title": "", "text": "“transferring a data set”; “storing said ... data set”; “assigning a secret code”; “entering said secret code”; “selecting ... [a] data set;” and “displaying ... [said] data set” — do not impose any specific dimensional requirements on the recited card. There is, therefore, no basis in the ordinary meaning of the claim terms at issue or in the other claim language to impose industry standard dimensions as the district court has done. II “Generally speaking, we indulge a ‘heavy presumption’ that a claim term carries its ordinary and customary meaning.” Sunrace Roots Enter. Co., LTD v. SRAM Corp., 336 F.3d 1298, 1302 (Fed.Cir.2003) (quoting CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed.Cir.2002)). However, we next look to the specification to determine “whether the presumption of ordinary and customary meaning is rebutted.” Tex. Digital, 308 F.3d at 1204; see also Inverness Med. Switz. GmbH v. Princeton Biomeditech Corp., 309 F.3d 1365, 1371-72 (Fed.Cir.2002). The paten-tee may have acted as his own lexicographer and imbued the claim terms with a particular meaning or “disavowed or disclaimed scope of coverage, by using words or expressions of manifest exclusion or restriction.” Tex. Digital, 308 F.3d at 1204. 3Com points us to the statement in the “Advantages of the Invention” section of the '311 patent which states “[p]artieular advantages are provided by the simple form of the electronic multi-function card which has the outer dimensions of usual credit or check cards.” '311 patent, col. 3, 11. 17-19 (emphases added). Elsewhere in the specification the patentee noted that “[credit] cards ... normally have standardized dimensions.” '311 patent, col. 1, 11. 18-19 (emphasis added). Interpretation of descriptive statements in a patent’s written description is a difficult task, as an inherent tension exists as to whether a statement is a clear lexicographic definition or a description of a preferred embodiment. The problem is to interpret claims “in view of the specification” without unnecessarily importing limitations from the specification into the claims. Tex. Digital, 308 F.3d at 1204-05. Thus in determining whether a statement by a patentee was intended to be lexicographic, it is important to" }, { "docid": "516102", "title": "", "text": "Markman opinion, the district court noted Rambus’s proposed ordinary meaning of “bus,” but held that the patentees acted as their own lexicographer by redefining “bus” to be a multiplexed bus. Multiplexing refers to the sharing of a single set of lines to send multiple types of information. Under the district court’s construction, the “bus” carries three types of information: address, data, and control information. The term “bus” is very common in the electrical arts and has a well-recognized meaning in such arts, namely, a set of signal lines, (e.g., copper traces on a circuit board) to which a number of devices are connected, and over which information is transferred between devices. The New IEEE Standard, Dictionary of Electrical and Electronic Terms 141 (5th ed.1993). The claims generally recite outputting data over a “bus.” The claims do not specify that the bus multiplexes address, data, and control information. See '918 patent, col. 26, 11. 19-27. Nothing in the claims compels a definition different from the ordinary meaning of “bus.” Before according “bus” this meaning, however, this court must consider the usage and meaning of the term as used in the relevant context of the specification. In general, most references to “bus” in the specification do not limit the ordinary meaning of this term. Only two references potentially limit the meaning of “bus” in the context of the specification. In the Summary of the Invention, the pat-entee stated that the “present invention” includes a bus for carrying substantially all address, data, and control information. '918 patent, col. 3,11. 50-60. The patentee further stated that “the bus carries device-select information without the need for separate device-select lines connected directly to individual devices.” Id. In the Detañed Description, the patentee stated: The present invention is designed to provide a high speed, multiplexed bus for communication between processing devices and memory devices .... The bus carries substantially all address, data and control information needed by devices for communication with other devices on the bus. In many systems using the present invention, the bus carries almost every signal between every device in the entire system. There" }, { "docid": "23262495", "title": "", "text": "allowance was clear and the limitation of original claim 8 was clear on its face, the appearance of the phrase in new claim 14 was an indication, as interpreted by Zink, that the limitation of original claim 8 had been incorporated into the new claim. Claim Construction — Specification Another factor in claim construction is the use of the patent specification. McClain v. Ortmayer, 141 U.S. 419, 12 5. Ct. 76, 35 L.Ed. 800 (1891); Fromson, 720 F.2d at 1569-70, 219 USPQ at 1140. Words which were defined in the specification must be given the same meaning when used in a claim. General Electric Co. v. United States, 572 F.2d 745, 753, 198 USPQ 65, 71 (Ct.Cl.1978). In Autogiro, 348 F.2d at 397-98, 155 USPQ at 702-3, the Court of Claims stated: In serving its statutory purpose, the specification aids in ascertaining the scope and meaning of the language employed in the claims inasmuch as words must be used in the same way in both the claims and the specification. U.S.Pat.Off. Rule 75(d). The use of the specification as a concordance for the claims is accepted by almost every court, and is a basic concept of patent law. [Footnotes omitted.] In the specification of the patent at issue, the phrase “recovered liquid hydrocarbon absorbent” is not defined. However, the phrase “recovered liquid hydrocarbon” and the word “absorbent” are defined. For example, the specification states that the “[Recovered liquid hydrocarbon overflowing the weir 54 is withdrawn from separator 52 through line 62 connected between the lower portion of separator 52 and line 74 for use as a liquid adsorbent [sic].” The specification then describes the direct countercurrent contact of the vapor hydrocarbon component and the recovered liquid hydrocarbon “introduced in the upper portion of the absorber via line 72.” In addition, the specification discloses that a portion of the recovered liquid hydrocarbon discharged from absorber 70 is first cooled by cooler 82 and then pumped via line 72 to the top of absorber 70 “for use as absorbent.” Thus, the specification discloses a process in which the absorbent is created internally" }, { "docid": "6937710", "title": "", "text": "2. The Specification The specification states that the invention relates “to remote control apparatus and more particularly to the adjustable positioning of a device adapted to be optically aligned with a target.” Id. at col. 1, 11. 3-5. With regard to the three limitations in dispute here, it states that “[wjhile the weapon is triggered, the image picked up by the camera is recorded. Also, the weapon can be triggered only while the receiving monitor is operating.” Id. at col. 1, 11. 43-45. The specification further states that “[t]he weapon is ... conditioned for operation only after the television camera is in operation so that the target with which the weapon is to be optically aligned, may be tracked by the operator through the control console.” It also states that “[pjower from power source (78) at weapon station, will supply operating voltage to the motor control circuit section.” Id. at col. 3,11. 12-14. More detailed discussion of the specification and accompanying drawings is included in the discussion section. S. Prosecution History On January 5,1971, plaintiff filed his application for a patent. His application contained eight claims. Claim 1 was the same as the current claim 1 up to the point where it reads “triggering means mounted adjacent the receiver and connected to the adjustably positioned device for operation thereof when the target is optically aligned with the camera as viewed on the receiver,” at which point it ended. Claim 5 read “[t]he combination of claim 1 including recording means connected to the camera, and means for rendering the recording means operative simultaneously with the triggering means.” In an action dated February 2, 1971, the examiner rejected all eight of plaintiff’s claims. The examiner rejected claims 1, 2, 7, and 8, citing 35 U.S.C. § 102 (1988) and U.S. patent #3,417,198 [the “Loyd patent”], and stating the Loyd patent showed the remote control television weapon system. In rejecting claims 3-6, the examiner cited 35 U.S.C. § 103 and the Loyd patent, stating that the addition of a video tape recorder (“VTR”) to the television system would be an obvious modification to" } ]

[ { "docid": "23119481", "title": "", "text": "barred. II. The Constitutional Standard A number of recent decisions in the federal courts involving somewhat similar facts have held that when the government affects the private interests of individuals, it may not proceed arbitrarily but must observe due process of law. See, e. g., Cafeteria & Restaurant Workers Union v. McElroy, supra, Hannah v. Larche, 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960); Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959). Nevertheless, the flexibility which is inherent in the concept of due process of law precludes the dogmatic application of specific rules developed in one. context to entirely distinct forms of government action. “For, though ‘due process of law’ generally implies and includes actor, reus, judex, regular allegations, opportunity to answer, and a trial according to some settled course of judicial proceedings, * * * yet, this is not universally true.” Murray’s Lessee v. Hoboken Land and Improvement Co., 59 U.S. (18 How.) 272, 280, 15 L.Ed. 372 (1855). And see Cafeteria & Restaurant Workers Union v. McElroy, supra; Dixon v. Alabama State Board of Education, 294 F.2d 150 (5 cir.), cert. denied, 368 U.S. 930, 82 S. Ct. 368, 7 L.Ed.2d 193 (1961). Thus to determine in any given case what procedures due process requires, the court must carefully determine and balance the nature of the private interest affected and of the government interest involved, taking account of history and the precise circumstances surrounding the case at hand. While the government must always have a legitimate concern with the subject matter before it may validly affect private interests, in particularly vital and sensitive areas of government concern such as national security and military affairs, the private interest must yield to a greater degree to the governmental. By contrast in the Dixon case where no such paramount government interest appeared, the court required a state supported university to hold a full hearing preserving in substantial degree the essentials of an adversarial proceeding before it could expel a student. Although the private interest affected in this case may appear to be more substantial" } ]

[ { "docid": "2065437", "title": "", "text": "process requirements for public school suspensions have not yet been sharply defined. See, e. g., Williams v. Dade County School Board, 5 Cir. 1971, 441 F.2d 299; Dunn v. Tyler Ind. School Dist., supra. On the basis of existing ease law, however, we can say without equivocation that plaintiffs have failed to demonstrate that any due process violation occurred. It is clear that a suspension for forty days or more without provision for a prior hearing presents serious due process problems. See Williams v. Dade County School Board, supra; Pervis v. LaMarque Ind. School Dist., supra; see also, Dixon v. Alabama State Board of Educ., 5 Cir. 1961, 294 F.2d 150, cert. denied, 368 U. S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193. It is equally clear that due process does not require a hearing every time a student is sent home from school or suspended for a short period of time. Dunn v. Tyler Ind. School Dist., supra; Banks v. Board of Public Instruction of Dade County, S.D.Fla.1970, 314 F.Supp. 285, vacated and remanded, 1971, 401 U.S. 988, 91 S.Ct. 1223, 28 L.Ed.2d 526, aff’d 450 F.2d 1103; Tate v. Board of Education of Jonesboro, 8 Cir. 1972, 453 F.2d 975; Farrell v. Joel, 2 Cir. 1971, 437 F.2d 160; Baker v. Downey City Board of Educ., C.D.Cal.1969, 307 F. Supp. 517; see also, Black Students of North Fort Myers Jr.-Sr. High School v. Williams, 5 Cir. 1972, 470 F.2d 957. The statute before us does not, in explicit terms, indicate the duration of a “suspension.” Absent evidence that students are, in fact, being suspended for long periods of time without prior hearings, we cannot assume that the statute is being applied in an unconstitutional fashion. Plaintiffs have not shown us any example of a student being suspended for more than a few days without a hearing having been accorded. Whatever procedural inadequacies existed during the January 19th mass suspensions were cured by the district court order of January 28, and we do not feel that the school board actions in that incident require a holding that the state" }, { "docid": "12835276", "title": "", "text": "refreshments for a school function, being a gathering of students of the Home Economic class and some of their parents, on school premises, being the auditorium building of Mena High School, and being under the direction of Mrs. Curtis Powell. “3. That the three girls in question traveled to Oklahoma, purchased a number of bottles of malt liquor, a beer type beverage, and later went onto school premises with the alcoholic beverage and put two or more of the bottles of the drink into the punch or liquid refreshment which was to be served to members of the class and parents.” . The opinion of the trial court is published at 348 F.Supp. 244 (W.D.Ark.1972). . Jones v. Snead, 431 F.2d 1115 (8th Cir. 1970). . Tate v. Board of Ed. of Jonesboro, Ark., Spec. Sell. Dist., 453 F.2d 975 (8th Cir. 1972); Esteban v. Central Missouri State College, 415 F.2d 1077 (8th Cir. 1969), cert. denied, 398 U.S. 965, 90 S.Ct. 2169, 26 D.Ed.2d 548 (1970). . Jones v. Snead, supra; Tate v. Board of Ed. of Jonesboro, Ark., Spec. Sell. Dist., supra; Farrell v. Joel, 437 F.2d 160 (2nd Cir. 1971); Esteban v. Central Missouri State College, supra; Wasson v. Trowbridge, 382 F.2d 807 (2nd Cir. 1967); Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir.), cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7 D.Ed.2d 193 (1961). See also, “Judicial Standards of Procedure and Substance in Review of Student Discipline in Tax Supported Institutions of Higher Education,” 45 F.R.D. 133, 147 (W.D.Mo. 1968). . Gouge v. Joint School District No. 1, 310 F.Supp. 984 (W.D.Wis.1970). . Gouge v. Joint School District No. 1, supra. See, 2 T. Emerson, D. Haber & N. Dorsen, Political and Civil Rights in the United States (3rd ed. 1967). . Although the regulation seems to call for mandatory suspension for the balance of the semester and the “Administrative Policies” for the Mena Public Schools do not provide fer a hearing in the event of expulsion or suspension, we need not discuss the appellants’ challenge of the regulation on those" }, { "docid": "4195829", "title": "", "text": "123, 46 S.Ct. 215, 70 L.Ed. 494; Barnes v. Merritt, 5 Cir. 1967, 376 F.2d 8; Hornsby v. Allen, 5 Cir. 1964, 326 F.2d 605. . See Dixon v. Alabama State Board of Education, 5 Cir. 1961, 294 F.2d 150, cert. denied, 1961, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193; Stricklin v. Regents of University of Wisconsin, W.D.Wis., 1969, 297 F.Supp. 416. Zanders v. Louisiana State Board of Education, W.D.La., 1968, 281 F.Supp. 747. See also, Seavey, “Dismissal of Students: ‘Due Process,’ ” 70 Harv.L.Rev. 1406 (1957). . That the Fourteenth Amendment reaches various actions by public housing authorities has been recognized in other contexts. See e. g., Holmes v. New York City Housing Authority, 2 Cir. 1968, 398 F.2d 262, Colon v. Tompkins Square Neighbors, Inc., S.D.N.Y., 1968, 294 F. Supp. 134; Thomas v. Housing Authority of Little Rock, E.D.Ark., 1967, 282 F. Supp. 575; Holt v. Richmond Redevelopment and Housing Authority, E.D.Va. 1966, 266 F.Supp. 397. . See also, Lawson v. Housing Authority, 1955, 270 Wis. 269, 70 N.W.2d 605, cert. denied, 1956, 350 U.S. 882, 76 S.Ct. 135, 100 L.Ed. 778; Kutcher v. Housing Authority, 1955, 20 N.J. 181, 119 A.2d 1; Chicago Housing Authority v. Blackman, 1954, 4 Ill.2d 319, 122 N.E.2d 522. . The Housing Authority also must comply with the minimal procedures outlined in the February 7, 1967, Circular of the Department of Housing and Urban Development. HUD requires that “no tenant be given notice to vacate without being told by the Local Authority, in a private conference or other appropriate manner, the reasons for the eviction, and given an opportunity to make such reply or explanation as he may wish.” See Thorpe v. Housing Authority of Durham, 1969, 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed. 2d 474. . The procedural requirements that due process imposes on state colleges are set forth in Dixon v. Alabama State Board of Education, supra 294 F.2d at 158-159." }, { "docid": "1471732", "title": "", "text": "educational institutions, the differences in the range of activities subject to discipline, and the age of students, of. Scoville v. Board of Education, 425 F.2d 10 (7th Cir. 1970) (en banc).” Whitfield v. Simpson (E.D.Ill.), 312 F.Supp. 889 (1970) (dissenting opinion). . We agree that uncontrolled delegations of power create a substantial risk of arbitrary action which, especially when fundamental rights are involved, may violate due process. Cf. Niemotko v. Maryland, 340 U.S. 268, 271 S.Ct. 325, 95 L.Ed. 267 (1951) ; Louisiana v. United States, 380 U.S. 145, 85 S.Ct. 817, 13 L.Ed.2d 709 (1965). As a general rule, however, due process requires court intervention only if a plaintiffs interests cannot be effectively protected short of invalidating the delegation of power, Mann v. Powell, (N.D.Ill. Dec. 30, 1969), 314 F.Supp. 677. We choose not to decide the application of these principles in the present situation. . Plaintiff argues tliat the holding of Dixon v. Alabama Board of Education, 294 F.2d 150 (5th Cir.), cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193 (1961), is applicable in the instant case. Again we are of the view that the considerations suggested by Judge Cummings in Whitfield v. Simpson, supra n. 3, may permit considerably wider latitude to high schools in fashioning disciplinary procedures. . The same or related position has been taken by many other courts. Richards v. Thurston, 304 F.Supp. 449 (D.Mass.), aff’d, 424 F.2d 1281 (1st Cir. 1970) ; Miller v. Gillis, 315 F.Supp. 94 (N.D.Ill. 1969) ; Farrell v. Smith, 310 F.Supp. 732 (D.Me.1970) ; Sims v. Colfax Community School District, 307 F.Supp. 485 (S.D. Iowa 1970) ; Westley v. Rossi, 305 F.Supp. 706 (D.Minn.1969) ; Griffin v. Tatum, 300 F.Supp. 60 (M.D.Ala.1969) ; Zachry v. Brown, 299 F.Supp. 1360 (N.D.Ala.1967). See generally Note, 4 Valpo.L.Rev. 400. Some courts, including the district court in this case, have assumed the existence of a constitutionally protected right but have held that the state has presented sufficient evidentiary justification to infringe plaintiff’s right. Ferrell v. Dallas Independent School District, 392 F.2d 697 (5th Cir.), cert. denied, 393 U.S. 856," }, { "docid": "12154937", "title": "", "text": "notified. The pupil may be reinstated after conferences between principal, student and parent, at which the principal is assured the student will abide by school regulations. On the other hand, if a suspension is indefinite or for more than three days a different procedure is provided by another regulation, with a hearing prior to imposition of penalty, written prehearing notice, representation for the student at the hearing if desired, and other somewhat formalized provisions necessary to meet due process requirements. The school officials considered that they were acting under the procedure for suspensions of three days or less, and, to the extent that they imposed penalties greater than three-day suspensions, we agree with the District Court that the regulations were not followed. Thus it was not proper to impose probation or the exposure to future permanent expulsion for violation of any other school rule. The suspensions did not violate the governing regulation set out in footnote 9. supra, and the regulations are constitutionally sufficient. Obviously school officials have available to them in day-to-day operation of schools a scope of summary punishment without even the limited type of hearing required in more serious circumstance. A principal does not have to serve written notice of the charge, a list of witnesses, and a summary of expected testimony in order to have a student “stay in” for an hour for running in the halls. See Farrell v. Joel, 437 F.2d 160, 162 (2d Cir. 1971). At the other end of the spectrum is exposure to more serious penalties, such as expulsion of a college student, Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir.), cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193 (1961), and suspension for 40 days (eight school weeks), Williams v. Dade County School Board, 441 F.2d 299 (5th Cir. 1971). This in-between case of brief suspension is similar to Baker v. Downey City Bd. of Education, 307 F.Supp. 517 (C.D.Cal.1969), in which informal conference with parents was held constitutionally sufficient to support a 10-day temporary suspension. See also Banks v. Board of Public Instruction" }, { "docid": "23375281", "title": "", "text": "v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975); Jones v. Snead, 431 F.2d 1115 (8th Cir. 1970); Esteban v. Central Mo. State College, 415 F.2d 1077, 1089 (8th Cir. 1969), cert. denied, 398 U.S. 965, 90 S.Ct. 2169, 26 L.Ed.2d 548 (1970); Wasson v. Trowbridge, 382 F.2d 807 (2d Cir. 1967); Dixon v. Alabama State Bd. of Educ., 294 F.2d 150 (5th Cir.), cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193 (1961). See generally Annot., Right of Student to Hearing on Charges before Suspension or Expulsion from Educational Institution, 58 A.L.R.2d 903 (1958). . Compare Goss v. Lopez, 419 U.S. 565, 583-84, 95 S.Ct. 729, 740-41, 42 L.Ed.2d 725 (1975). In the context of disciplinary expulsions or dismissals, where school officials must act as a fact-finding body rather than a board of academic review, due process may well require additional procedural safeguards. See Dixon v. Alabama State Bd. of Educ., 294 F.2d 150, 158-59 (5th Cir.), cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193 (1961); cf. Goss v. Lopez, 419 U.S. 565, 584, 95 S.Ct. 729, 741, 42 L.Ed.2d 725 (1975). . Since this case must be remanded for further administrative proceedings, we do not reach Greenhill’s contention that he was denied substantive due process. However, we think this additional caveat is appropriate: For a court to overturn a student’s dismissal on substantive grounds it must find that such dismissal was arbitrary and capricious. See Keys v. Sawyer, 353 F.Supp. 936 (S.D.Tex.1973); Connelly v. University of Vermont and State Agricultural College, 244 F.Supp. 156 (D.Vt. 1965). That standard is a narrow one, to be applied only where administrative action “is not supportable on any rational basis” or where it is “willful and unreasoning action, without consideration and in disregard of the facts or circumstances of the case.” First National Bank v. Smith, 508 F.2d 1371, 1376 (8th Cir. 1974). Educational institutions can judge a student’s performance better than can a court of law, particularly in an advanced field such as the study of medicine. Depperman v. University of Kentucky, 371" }, { "docid": "23395354", "title": "", "text": "(6th Cir.1969), cert. dismissed, 397 U.S. 31, 90 S.Ct. 779, 25 L.Ed.2d 27 (1970); Esteban v. Central Missouri State College, 277 F.Supp. 649 (W.D. Mo.1967), aff'[d, 415 F.2d 1077 (8th Cir. 1969) , cert. denied, 398 U.S. 965, 90 S.Ct. 2169, 26 L.Ed.2d 548 (1970). A review of these cases shows that the district courts in Givens and Esteban did, in fact, hold that there was a right to counsel. However, this Court in Norton went no further than to note, in finding that due process had been satisfied in that case, that the students in question had had the opportunity to be represented by counsel at their hearing. 419 F.2d at 200. District Judge Miller in Jones (whose opinion this Court adopted) made a similar finding, and did not expressly hold that the right to counsel was a requisite to due process in such circumstances. Significantly, the late Judge Miller (who later served on this Court) cited to Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir.1961), cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193 (1961), as “[t]he leading case involving the application of these basic principles to a disciplinary proceeding conducted by a state supported educational institution.” 279 F.Supp. at 197; see also Goss, 419 U.S. at 576 n. 8, 95 S.Ct. at 737 n. 8 (Dixon was a “landmark decision”). In Dixon, the Fifth Circuit established the following standards: The notice should contain a statement of the specific charges and grounds which, if proven, would justify expulsion under the regulations of the Board of Education. The nature of the hearing should vary depending upon the circumstances of the particular case. The case before us requires something more than an informal interview with an administrative authority of the college. By its nature, a charge of misconduct, as opposed to a failure to meet the scholastic standards of the college, depends upon a collection of the facts concerning the charged misconduct, easily colored by the point of view of the witnesses. In such circumstances, a hearing which gives the Board or the administrative" }, { "docid": "1380419", "title": "", "text": "impartial official at which she could confront and cross-examine any adverse witnesses as well as present a defense concerning punishment. Appellant assumes that her complaint states a viable action under the Civil Rights Act, 42 U.S.C. § 1983, and its jurisdictional counterpart, 28 U.S.C. § 1343(3). It is a measure of the change in the law over the past decade that the defendants and the district court did not question this assumption. As Professor Charles Wright has put it, we “recognize the fact that, for good or for ill, the Constitution has come to the campus.” The Constitution on the Campus, 22 Vand.L.Rev. 1027, 1033 (1969). However, the major cases have dealt with such severe sanctions as expulsion, e. g., Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir.), cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193 (1961); Wasson v. Trowbridge, 382 F.2d 807 (2d Cir. 1967), rather than with milder discipline such as suspension for a short time, although there have been a few instances of litigation over the latter. See, e. g., Baker v. Downey City Board of Education, 307 F.Supp. 517 (C.D.Cal.1969); Stricklin v. Regents of University of Wisconsin, 297 F.Supp. 416, 419-421 (W.D.Wisc.1969), appeal dismissed as moot, 420 F.2d 1257 (7th Cir. 1970); cf. Schwartz v. Schuker, 298 F.Supp. 238 (E.D.N.Y.1969). In the United States District Court for the Western District of Missouri, the four district judges took the extraordinary step of convening an en banc court, which promulgated a General Order on Judicial Standards of Procedure and Substance in Review of Student Discipline in Tax Supported Institutions of Higher Education, 45 F.R.D. 133 (W.D.Mo., 1968). The General Order apparently assumes that even “lesser disciplinary procedures” may fall afoul of constitutional commands, but lists “minimal procedural requirements” of due process only as to “severe cases of student discipline * * * such as final expulsion, indefinite or long-term suspension, dismissal with deferred leave to reapply * * * ” Id. at 142, 147. This court does not seem to have ruled on the precise issue, see Madera v. Board of" }, { "docid": "3844928", "title": "", "text": "also Memorandum on Judicial Standards of Procedure and Substance in Review of Student Discipline in Tax Supported Institutions of Higher Education, 45 F.R.D. 134, 145 (W.D.Mo.1968) (sitting en bañe). We also hold that the allegations in the plaintiffs’ complaint are sufficient to have informed the District Court of these facts and to have invoked the court’s jurisdiction. It was not necessary to state with particularity the statute, ordinance, or regulation pursuant to which the defendants acted in dismissing plaintiffs from the University. The important fact, for the purpose of determining jurisdiction, is whether the complaint indicated that the conduct of the defendants constituted “state action” within the meaning of the Civil Rights Act. Cf. Esteban v. Central Missouri State College, 290 F.Supp. 622, 628 (W.D.Mo.1968). Since we have decided that plaintiffs properly invoked the jurisdiction of the District Court, it is appropriate, in light of the District Judge’s holding to the contrary, also to decide whether the complaint states a claim upon which relief can be granted under the Civil Rights Act. We hold that it does. Defendants were required to accord plaintiffs procedural due process throughout the disciplinary proceedings which resulted in their dismissal from the University. Jones v. State Bd. of Educ. of Tenn., 279 F.Supp. 190 (M.D.Tenn.1968), aff’d., 407 F.2d 834 (6th Cir. 1969), cert. granted, 396 U.S. 817, 90 S.Ct. 145, 24 L.Ed.2d 69 (1969), petition for cert. dismissed, 397 U.S. 31, 90 S.Ct. 779, 25 L.Ed.2d 27 (1970); Dixon v. Alabama State Bd. of Educ., 294 F.2d 150 (5th Cir. 1961); Esteban v. Central Missouri State College, supra. The allegations in the complaint, which must be accepted as true for the purpose of determining the complaint’s sufficiency, L’Orange v. Medical Protective Co., 394 F.2d 57, 59 (6th Cir. 1968), charge the defendants with conduct which would constitute a denial of due process. Accordingly, the complaint, although not artfully drafted, is adequate to survive a challenge based on a failure to state a claim upon which relief can be granted. Our decision that the court has jurisdiction over the subject matter of this suit makes it" }, { "docid": "23272954", "title": "", "text": "et seq. (“Temple University-Commonwealth Act”) with Pa.Stat.Ann. tit. 24, § 2510-201 et seq. (“University of Pittsburgh-Commonwealth Act”). The Temple Act was enacted roughly eight months prior to the Pitt statutory program. For the history of the Temple legislation, see 385 F.Supp. at 475-77. . 385 F.Supp. at 495. . 407 F.2d 73 (2d Cir. 1968). . Id. at 82-83. . At the time of the Powe litigation, the State of New York appropriated approximately $1.8 million for the ceramics school, an amount covering the “direct” expenses and certain other miscellaneous costs of the school. Id. at 76. . Compare N.Y. Education Law § 6101 (McKinney 1976), quoted in 407 F.2d at 75 n.3, 83, with Pa.Stat.Ann. tit. 24, § 2510-201. The historical origins of the College of Ceramics do, however, differ from those of Pitt. For the college descends from a clay-working school founded by the State of New York at the turn of this century, 407 F.2d at 73. . For the most part, those cases in which state action has been present concerned state-owned colleges. See, e. g., Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1971) (Central Connecticut State College); Skehan v. Bloomsburg State College, 501 F.2d 31 (3d Cir.), vacated and remanded for further consideration, 421 U.S. 983, 95 S.Ct. 1986, 44 L.Ed.2d 474 (1975); Brown v. Strickler, 422 F.2d 1000 (6th Cir. 1970) (University of Louisville); Esteban v. Central Missouri State College, 415 F.2d 1077 (8th Cir. 1969), cert. denied, 398 U.S. 965, 90 S.Ct. 2169, 26 L.Ed.2d 548 (1970); Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir.), cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193 (1961) (Alabama State College). But see Hammond v. University of Tampa, 344 F.2d 951 (5th Cir. 1965); Belk v. Chancellor of Washington University, 336 F.Supp. 45 (E.D.Mo.1970). Cf. Rackin v. University of Pennsylvania, 386 F.Supp. 992 (E.D. Pa.1974). Understandably, most courts have been reluctant to impose constitutional and statutory mandates on private universities which receive limited state benefits. See, e. g., Cannon v. University of Chicago, Nos. 76-1238," }, { "docid": "22608097", "title": "", "text": "470 F. 2d 201, 211 (CA2 1972); Wasson v. Trowbridge, 382 F. 2d 807, 812 (CA2 1967); Esteban v. Central Missouri State College, 415 F. 2d 1077, 1089 (CA8 1969), cert. denied, 398 U. S. 965 (1970); Vought v. Van Buren Public Schools, 306 F. Supp. 1388 (ED Mich.1969); Whitfield v. Simpson, 312 F. Supp. 889 (ED Ill. 1970); Fielder v. Board of Education of School District of Winnebago, Neb., 346 F. Supp. 722, 729 (Neb. 1972); DeJesus v. Penberthy, 344 F. Supp. 70, 74 (Conn. 1972); Soglin v. Kauffman, 295 F. Supp. 978, 994 (WD Wis. 1968), aff’d, 418 F. 2d 163 (CA7 1969); Stricklin v. Regents of University of Wisconsin, 297 F. Supp. 416, 420 (WD Wis. 1969), appeal dismissed, 420 F. 2d 1257 (CA7 1970); Buck v. Carter, 308 F. Supp. 1246 (WD Wis. 1970); General Order on Judicial Standards of Procedure and Substance in Review of Student Discipline in Tax Supported Institutions of Higher Education, 45 F. R. D. 133,147-148 (WD Mo. 1968) (en banc). The lower courts have been less uniform, however, on the question whether removal from school for some shorter period may ever be so trivial a deprivation as to require no process, and, if so, how short the removal must be to qualify. Courts of Appeals have held or assumed the Due Process Clause applicable to long suspensions, Pervis v. LaMarque Ind. School Dist., 466 F. 2d 1054 (CA5 1972); to indefinite suspensions, Sullivan v. Houston Ind. School Dist., 475 F. 2d 1071 (CA5), cert. denied, 414 U. S. 1032 (1973); to the addition of a 30-day suspension to a 10-day suspension, Williams v. Dade County School Board, 441 F. 2d 299 (CA5 1971); to a 10-day suspension, Black Students of North Fort Myers Jr.-Sr. High School v. Williams, 470 F. 2d 957 (CA5 1972); to “mild” suspensions, Farrell v. Joel, 437 F. 2d 160 (CA2 1971), and Tate v. Board of Education, 453 F. 2d 975 (CA8 1972); and to a three-day suspension, Shanley v. Northeast Ind. School Dist., Bexar County, Texas, 462 F. 2d 960, 967 n. 4 (CA5 1972);" }, { "docid": "12154938", "title": "", "text": "schools a scope of summary punishment without even the limited type of hearing required in more serious circumstance. A principal does not have to serve written notice of the charge, a list of witnesses, and a summary of expected testimony in order to have a student “stay in” for an hour for running in the halls. See Farrell v. Joel, 437 F.2d 160, 162 (2d Cir. 1971). At the other end of the spectrum is exposure to more serious penalties, such as expulsion of a college student, Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir.), cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193 (1961), and suspension for 40 days (eight school weeks), Williams v. Dade County School Board, 441 F.2d 299 (5th Cir. 1971). This in-between case of brief suspension is similar to Baker v. Downey City Bd. of Education, 307 F.Supp. 517 (C.D.Cal.1969), in which informal conference with parents was held constitutionally sufficient to support a 10-day temporary suspension. See also Banks v. Board of Public Instruction of Dade County, 314 F.Supp. 285 (S.D.Fla. 1970, 3 judges), sustaining the constitutionality of application of Florida statute and regulations providing for a 10-day suspension with notice after the fact to parents and an invitation to them to come to school for an interview if they wish. In Williams v. Dade County School Board, supra, this circuit recognized Banks and distinguished its 10-day suspension from stacked suspensions of 10 plus 30, or 40 days, which we considered to be “serious punishment.” The Eighth Circuit has sustained a five-day suspension, imposed on the spot at the time of infraction, reduced later to three days for students who conferred privately with the principal. Tate v. Board of Education of Jonesboro, 453 F.2d 975 [8th Cir., 1972]. The District Court considered, as does Judge Rives, that the applicable suspension procedures are those for suspensions of more than three days, on the basis that the students already had been suspended, either instantaneously when they were told to leave the school grounds if they were not going to attend classes," }, { "docid": "1380420", "title": "", "text": "the latter. See, e. g., Baker v. Downey City Board of Education, 307 F.Supp. 517 (C.D.Cal.1969); Stricklin v. Regents of University of Wisconsin, 297 F.Supp. 416, 419-421 (W.D.Wisc.1969), appeal dismissed as moot, 420 F.2d 1257 (7th Cir. 1970); cf. Schwartz v. Schuker, 298 F.Supp. 238 (E.D.N.Y.1969). In the United States District Court for the Western District of Missouri, the four district judges took the extraordinary step of convening an en banc court, which promulgated a General Order on Judicial Standards of Procedure and Substance in Review of Student Discipline in Tax Supported Institutions of Higher Education, 45 F.R.D. 133 (W.D.Mo., 1968). The General Order apparently assumes that even “lesser disciplinary procedures” may fall afoul of constitutional commands, but lists “minimal procedural requirements” of due process only as to “severe cases of student discipline * * * such as final expulsion, indefinite or long-term suspension, dismissal with deferred leave to reapply * * * ” Id. at 142, 147. This court does not seem to have ruled on the precise issue, see Madera v. Board of Education, 386 F.2d 778 (2d Cir. 1967), cert. denied, 390 U.S. 1028, 88 S.Ct. 1416, 20 L.Ed.2d 284 (1968), but we will assume arguendo that due process applies when a publicly financed educational institution — whether college or high school— imposes a mild, as well as a severe, penalty upon a student. However, the inquiry does not end with this assumption; it only begins. Due process does not invariably require the procedural safeguards accorded in a criminal proceeding. Rather, “ [t] he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.” Cafeteria and Restaurant Workers, Local 473, AFL-CIO v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961). See Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 1514, 4 L.Ed.2d 1307 (1960) (“ ‘Due process’ is an elusive concept. Its exact boundaries are undefinable, and its content varies according to specific factual contexts.”) We believe that in these school discipline cases the nature of the sanction affects the validity of the" }, { "docid": "4195828", "title": "", "text": "Due process requires, however, that selections among applicants to public housing be made in accordance with reasonable and ascertainable standards. Holmes v. New York City Housing Authority, 2d Cir. 1968, 398 F.2d 262, 265. Colon v. Tompkins Square Neighbors, Inc., S.D. N.Y., 1968, 294 F.Supp. 134. . Note, “Public Landlords and Private Tenants: The Eviction of ‘Undesirables’ from Public Housing Projects.” 77 Yale Law Journal 988, 994, 996-97 (1968). . See Greene v. McElroy, 1959, 360 U.S. 474, 492, 79 S.Ct. 1400, 3 L.Ed.2d 1377; Wieman v. Updegraff, 1952, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216. Cf. Cafeteria and Restaurant Workers v. McElroy, 1961, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed. 2d 1230. . See Willner v. Committee on Character and Fitness, 1963, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224; Schware v. Board of Bar Examiners, 1957, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796; Konigsberg v. State Bar, 1957, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810; Goldsmith v. Board of Tax Appeals, 1926, 270 U.S. 117, 123, 46 S.Ct. 215, 70 L.Ed. 494; Barnes v. Merritt, 5 Cir. 1967, 376 F.2d 8; Hornsby v. Allen, 5 Cir. 1964, 326 F.2d 605. . See Dixon v. Alabama State Board of Education, 5 Cir. 1961, 294 F.2d 150, cert. denied, 1961, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193; Stricklin v. Regents of University of Wisconsin, W.D.Wis., 1969, 297 F.Supp. 416. Zanders v. Louisiana State Board of Education, W.D.La., 1968, 281 F.Supp. 747. See also, Seavey, “Dismissal of Students: ‘Due Process,’ ” 70 Harv.L.Rev. 1406 (1957). . That the Fourteenth Amendment reaches various actions by public housing authorities has been recognized in other contexts. See e. g., Holmes v. New York City Housing Authority, 2 Cir. 1968, 398 F.2d 262, Colon v. Tompkins Square Neighbors, Inc., S.D.N.Y., 1968, 294 F. Supp. 134; Thomas v. Housing Authority of Little Rock, E.D.Ark., 1967, 282 F. Supp. 575; Holt v. Richmond Redevelopment and Housing Authority, E.D.Va. 1966, 266 F.Supp. 397. . See also, Lawson v. Housing Authority, 1955, 270 Wis. 269, 70 N.W.2d 605, cert." }, { "docid": "3976745", "title": "", "text": "be preserved without encroaching upon the interests of the college. In the instant case, the student should be given the names of the witnesses against him and an oral or written report on the facts to which each witness testifies. He should also be given the opportunity to present to the Board, or at least to an administrative official of the college, his own defense against the charges and to produce either oral testimony or written affidavits of witnesses in his behalf. If the hearing is not before the Board directly, the results and findings of the hearing should be presented in a report open to the student’s inspection. If these rudimentary elements of fair play are followed in a case of misconduct of this particular type, we feel that the requirements of due process of law will have been fulfilled.” Dixon v. Alabama State Board of Education, 294 F.2d 150, 158-159 (5th Cir.), cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7L.Ed.2d 193 (1961). This court cited the Dixon case with approval in Norton v. Discipline Committee of East Tenn. State Univ., 419 F.2d 195 (6th Cir. 1969), cert. denied, 399 U.S. 906, 90 S.Ct. 2191, 26 L.Ed.2d 562 (1970). See also Knight v. State Board of Education, 200 F.Supp. 174 (M.D.Tenn.1961) Appellee, however, contends that appellant on this record should be held to have had a due process hearing before her expulsion, and hence, that she has no equitable basis for complaint about the disputed Ohio statute. This is, in essence, the view taken by the District Judge who denied the petition to convene a three-judge court and then dismissed the complaint on the merits. The District Judge accepted as true affidavits filed by appellee and found that appellant was accorded a hearing which provided due process under the circumstances involved. Appellee and the District Judge both point to the limited requirements for an administrative due process hearing in a school disciplinary case set forth in Madera v. Board of Education of City of New York, 386 F. 2d 778 (2d Cir. 1967), cert. denied, 390 U.S. 1028," }, { "docid": "1380418", "title": "", "text": "the speeches, the students elected appellant and several others as “leaders.” Appellant attended classes as usual on May 15 and Monday, May 18. On Monday afternoon, the elected leaders met with school officials who informed them that the whole matter of the “sit-down” would be presented to the Board of Education at its regular Monday evening meeting. The demonstration was, in fact, discussed during the open session of that meeting. The Board then voted in closed (executive) session to suspend appellant, among others, for a period of 15 school days. On June 1, the United States District Court for the District of Connecticut, Robert C. Zampano, J., issued a temporary restraining order against the suspension. The order was continued by agreement of the parties and appellant ultimately was suspended for only ten school days. The gravamen of appellant’s complaint is that the manner in which she was suspended did not afford her procedural due process. She argues that she was entitled to written notice of the charge against her and then a hearing before an impartial official at which she could confront and cross-examine any adverse witnesses as well as present a defense concerning punishment. Appellant assumes that her complaint states a viable action under the Civil Rights Act, 42 U.S.C. § 1983, and its jurisdictional counterpart, 28 U.S.C. § 1343(3). It is a measure of the change in the law over the past decade that the defendants and the district court did not question this assumption. As Professor Charles Wright has put it, we “recognize the fact that, for good or for ill, the Constitution has come to the campus.” The Constitution on the Campus, 22 Vand.L.Rev. 1027, 1033 (1969). However, the major cases have dealt with such severe sanctions as expulsion, e. g., Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir.), cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193 (1961); Wasson v. Trowbridge, 382 F.2d 807 (2d Cir. 1967), rather than with milder discipline such as suspension for a short time, although there have been a few instances of litigation over" }, { "docid": "23375280", "title": "", "text": "associations in his community.” Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972); see Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971). . In view of our decision on Greenhill’s “liberty” claim, it is unnecessary for us to pass on his alternative contention that, once admitted to the College of Medicine, he had a property interest in continuing and completing his medical education. In this context, however, we note that the status of students at a graduate facility, to which admission is limited and determined on a competitive basis, may differ significantly from that of pupils at the elementary or high school level, where a free education is normally guaranteed by state law and attendance is required. See Goss v. Lopez, 419 U.S. 565, 573-74, 95 S.Ct. 729, 735-36, 42 L.Ed.2d 725 (1975). . E. g., Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975); Strickland v. Inlow, No. 72-1774(8th Cir., June 18, 1975), on remand from Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975); Jones v. Snead, 431 F.2d 1115 (8th Cir. 1970); Esteban v. Central Mo. State College, 415 F.2d 1077, 1089 (8th Cir. 1969), cert. denied, 398 U.S. 965, 90 S.Ct. 2169, 26 L.Ed.2d 548 (1970); Wasson v. Trowbridge, 382 F.2d 807 (2d Cir. 1967); Dixon v. Alabama State Bd. of Educ., 294 F.2d 150 (5th Cir.), cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193 (1961). See generally Annot., Right of Student to Hearing on Charges before Suspension or Expulsion from Educational Institution, 58 A.L.R.2d 903 (1958). . Compare Goss v. Lopez, 419 U.S. 565, 583-84, 95 S.Ct. 729, 740-41, 42 L.Ed.2d 725 (1975). In the context of disciplinary expulsions or dismissals, where school officials must act as a fact-finding body rather than a board of academic review, due process may well require additional procedural safeguards. See Dixon v. Alabama State Bd. of Educ., 294 F.2d 150, 158-59 (5th Cir.), cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193 (1961);" }, { "docid": "12835277", "title": "", "text": "of Ed. of Jonesboro, Ark., Spec. Sell. Dist., supra; Farrell v. Joel, 437 F.2d 160 (2nd Cir. 1971); Esteban v. Central Missouri State College, supra; Wasson v. Trowbridge, 382 F.2d 807 (2nd Cir. 1967); Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir.), cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7 D.Ed.2d 193 (1961). See also, “Judicial Standards of Procedure and Substance in Review of Student Discipline in Tax Supported Institutions of Higher Education,” 45 F.R.D. 133, 147 (W.D.Mo. 1968). . Gouge v. Joint School District No. 1, 310 F.Supp. 984 (W.D.Wis.1970). . Gouge v. Joint School District No. 1, supra. See, 2 T. Emerson, D. Haber & N. Dorsen, Political and Civil Rights in the United States (3rd ed. 1967). . Although the regulation seems to call for mandatory suspension for the balance of the semester and the “Administrative Policies” for the Mena Public Schools do not provide fer a hearing in the event of expulsion or suspension, we need not discuss the appellants’ challenge of the regulation on those grounds. The Board apparently did not view the regulation as restricting their actions, for they did hold a belated hearing and did consider imposing a less severe penalty. . See, Pervis v. LaMarque Independent School District, 466 F.2d 1054 (5th Cir. 1972).. In that case, the Court ruled that where students were suspended without a hearing for • three months, a subsequent hearing did not cure the initial constitutional deprivation. The Court, in discussing the dangers inherent in the contrary view, states at 1058: “ * * * How, then, could they have been made whole? They would have lost some 3 months of education. This result cannot obtain. Procedural due process must, on the facts present in this case, be given prior to imposition of serious suspensions.” . We note here that an exception to the Monroe rule has been developed in that line of cases following Harkless v. Sweeney Independent School District, 427 F.2d 319 (5th Cir. 1970), cert. denied, 400 U.S. 991, 91 S.Ct. 451, 27 L.Ed.2d 439 (1971). That Court held" }, { "docid": "22608096", "title": "", "text": "serious or recurrent behavior patterns” to employers without written consent of the student’s parents. While subsection (b)(1)(B) permits release of such information to “other schools ... in which the student intends to enroll,” it does so only upon condition that the parent be advised of the release of the information and be given an opportunity at a hearing to challenge the content of the information ■ to insure against inclusion of inaccurate or misleading information. The statute does not expressly state whether the parent can contest the underlying basis for a suspension, the fact of which is contained in the student’s school record. Since the landmark decision of the Court of Appeals for the Fifth Circuit in Dixon v. Alabama State Board of Education, 294 F. 2d 150, cert. denied, 368 U. S. 930 (1961), the lower federal courts have uniformly held the Due Process Clause applicable to decisions made by tax-supported educational institutions to remove a student from the institution long enough for the removal to be classified as an expulsion. Hagopian v. Knowlton, 470 F. 2d 201, 211 (CA2 1972); Wasson v. Trowbridge, 382 F. 2d 807, 812 (CA2 1967); Esteban v. Central Missouri State College, 415 F. 2d 1077, 1089 (CA8 1969), cert. denied, 398 U. S. 965 (1970); Vought v. Van Buren Public Schools, 306 F. Supp. 1388 (ED Mich.1969); Whitfield v. Simpson, 312 F. Supp. 889 (ED Ill. 1970); Fielder v. Board of Education of School District of Winnebago, Neb., 346 F. Supp. 722, 729 (Neb. 1972); DeJesus v. Penberthy, 344 F. Supp. 70, 74 (Conn. 1972); Soglin v. Kauffman, 295 F. Supp. 978, 994 (WD Wis. 1968), aff’d, 418 F. 2d 163 (CA7 1969); Stricklin v. Regents of University of Wisconsin, 297 F. Supp. 416, 420 (WD Wis. 1969), appeal dismissed, 420 F. 2d 1257 (CA7 1970); Buck v. Carter, 308 F. Supp. 1246 (WD Wis. 1970); General Order on Judicial Standards of Procedure and Substance in Review of Student Discipline in Tax Supported Institutions of Higher Education, 45 F. R. D. 133,147-148 (WD Mo. 1968) (en banc). The lower courts have been less" }, { "docid": "19786327", "title": "", "text": "outset, we are confronted with Penn State’s argument that those plaintiffs who were not dismissed or suspended, but merely placed on probation, have not been aggrieved to the degree that they can claim deprivation of their constitutional rights. There is persuasive authority to support this position. In the now recognized landmark case of Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir. 1961), in which it was held that due process requires notice and some opportunity for a hearing before students are expelled at a tax-supported college, the Court noted that “ * * * no one can question that the right to remain at the college in which plaintiffs were students in good standing is an interest of extremely great value.” 294 F.2d at 157 (Emphasis supplied). The United States District Court for the Western District of Missouri adopted a General Order on Judicial Standards of Procedure and Substance in Review of Student Discipline in Tax Supported Institutions of Higher Education, 45 F.R.D. 133 (W.D.Mo. 1968), in which it recognized that “(t)he discipline of students in the educational community is, in all but the case of irrevocable expulsion, a part of the teaching process. * * * ” Professor Wright opines that the Courts will distinguish severe penalties from mild penalties and will require formal procedures if there is to be expulsion or suspension for any significant time. Wright, supra, at 1071. He further acknowledges that if a school must establish a disciplinary system that meets constitutional standards for every situation where a student is charged with an infraction, the institution itself would be brought to a halt. Wright, supra, at 1083. In addition to the enormous burden this would place on school administrators, it would tend to make the Courts Super-Disciplinary Boards; could lead to judicial intrusion in matters of special academic expertise; could weaken the dominant position educators must possess in their relationship with students; could deprive them of the power to impose punishment as a part of their guidance and counseling function, and, practically speaking, would inundate the Courts with de minimis lawsuits." } ]

[ { "docid": "22326717", "title": "", "text": "of cross-examination and of exposing fabricated defenses, we held in Doyle v. Ohio, supra, that because of the nature of Miranda warnings it would be a violation of due process to allow comment on the silence which the warnings may well have encouraged: “[WJhile it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” Id., at 618 (footnote omitted). The significant difference between the present case and Doyle is that the record does not indicate that respondent Weir received any Miranda warnings during the period in which he remained silent immediately after his arrest. The majority of the Court of Appeals recognized the difference, but sought to extend Doyle to cover Weir’s situation by stating that “[w]e think an arrest, by itself, is governmental action which implicitly induces a defendant to remain silent.” 658 F. 2d, at 1131. We think that this broadening of Doyle is unsupported by the reasoning of that case and contrary to our post -Doyle decisions. In Jenkins v. Anderson, 447 U. S. 231, 239 (1980), a case dealing with pre-arrest silence, we said: “Common law traditionally has allowed witnesses to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted. 3A J. Wigmore, Evidence §1042, p. 1056 (Chadboum rev. 1970). Each jurisdiction may formulate its own rules of evidence to determine when prior silence is so inconsistent with present statements that impeachment by reference to such silence is probative.” In Jenkins, as in other post -Doyle cases, we have consistently explained Doyle as a case where the government had induced silence by implicitly assuring the defendant that his silence would not be used against him. In Roberts v. United States, 445 U. S. 552, 561 (1980), we observed that the post-conviction, presentencing silence of the" } ]

[ { "docid": "11382794", "title": "", "text": "warnings carry an implicit assurance that “silence will carry no penalty,” and that “it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” Id. at 618, 96 S.Ct. 2240. The Arkansas Supreme Court rejected Dansby’s claim. The court concluded that “the testimony elicited from Lieutenant Hill was not a comment on Dansby’s right to remain silent; rather, it merely explained to the jury why there was not a taped statement.” 893 S.W.2d at 340-41. Earlier in the trial, Mike Stegall, another police officer who participated in Dansby’s interrogation, testified that “after [Dans-by] had given us his statement ... Lieutenant Hill advised him that we needed to turn the tape recorder on to record his statement. At which point Mr. Dansby invoked his rights and stated that he didn’t want to say anything else without a lawyer.” Trial R. 676. The Arkansas court evidently believed that Hill’s answer, like Stegall’s testimony, explained why there was no recording of Dansby’s admissions, and that such testimony did not violate Dansby’s due process rights. Because the Arkansas Supreme Court resolved the Doyle claim on the merits, Dansby is entitled to relief only if the state court’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). The district court concluded that he could not meet that standard. The court ruled alternatively that any error was harmless. Dansby contends that the Arkansas court’s decision was an unreasonable application of Doyle and Wainwright v. Greenfield, 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986). Dansby cites Greenfield’s holding that the prosecution could not use an accused’s post -Miranda warning silence to overcome a defendant’s plea of insanity, because the implicit promise, breach, and consequent penalty is the same in that situation as when the prosecution seeks to use silence to impeach the accused’s testimony at trial. 474 U.S. at 292, 106 S.Ct. 634. Dansby argues that the State impermissibly" }, { "docid": "22214981", "title": "", "text": "of the V.I. v. Davis, 561 F.3d 159, 163 (3d Cir.2009). As we explain below, violations of Doyle are subject to harmless error analysis. Accordingly, we ask first whether a violation occurred and, if it did, we ask whether it had an effect on the jury’s verdict beyond a reasonable doubt. See id. We share the Appellate Division’s concern with some of the prosecutor’s questions. We also agree, albeit for different reasons, that any Doyle violation was harmless beyond a reasonable doubt. A. Once a criminal defendant receives the prophylactic warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), it is improper under Doyle “for a prosecutor to cause the jury to draw an impermissible inference of guilt from a defendant’s post-arrest silence.” Hassine v. Zimmerman, 160 F.3d 941, 947 (3d Cir.1998). This is so because Miranda warnings carry the Government’s “implicit assurance” that an arrestee’s invocation of the Fifth Amendment right to remain silent will not later be used against him. Davis, 561 F.3d at 163-64 (quoting Wainwright v. Greenfield, 474 U.S. 284, 290-91, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986)); United States v. Johnson, 302 F.3d 139, 146 (3d Cir.2002). Because a defendant’s post -Miranda warning silence could be nothing more than an invocation of his right to silence, it would be fundamentally unfair to permit a breach of that assurance by allowing impeaching questions as to why he failed to give an exculpatory account to the police after receiving the warnings. See Davis, 561 F.3d at 163. Not every reference to a defendant’s silence, however, results in a Doyle violation. Where “no governmental action induce[s] the defendant to remain silent,” Fletcher v. Weir, 455 U.S. 603, 606, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982), the Miranda-based fairness rationale does not control. Consequently, the Government permissibly may impeach a defendant’s testimony using his pre-arrest silence, J©ra kins v. Anderson, 447 U.S. 231, 240, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980); his post-arrest, pr e-Miranda warning silence, Fletcher, 455 U.S. at 605-07, 102 S.Ct. 1309 ; and any voluntary post-Miranda warning statements," }, { "docid": "7473418", "title": "", "text": "months imprisonment and O’Keefe immediately perfected this appeal. II. ISSUES O’Keefe raises the following two issues on appeal: (1) whether the ■ government violated his Fifth Amendment right to remain silent by eliciting testimony on, and making arguments about, O’Keefe’s failure to report his anti-child pornography activities to law enforcement; and (2) whether the government engaged in prosecutorial misconduct during its closing argument. III. DISCUSSION A. Fifth Amendment Violation O’Keefe asserts that the government, by its repeated questions to Brant and O’Keefe regarding whether O’Keefe had informed law enforcement of his plan to identify child predators, made impermissible comments in violation of the Fifth Amendment on O’Keefe’s decision to remain silent prior to trial. O’Keefe admits that, under Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), a prosecutor is permitted to comment on a defendant’s pre-arrest silence, but argues that a Doyle violation occurred here because it was the government’s intent to comment on O’Keefe’s post-arrest silence to suggest guilt and impeach his testimony. In Doyle, the Supreme Court held that “the use for impeachment purposes of [a defendant’s] silence, at the time of arrest and after receiving Miranda warnings, violate[s] the Due Process Clause of the Fourteenth Amendment.” Doyle, 426 U.S. at 619, 96 S.Ct. 2240. The Court gave two reasons for its holding. First, a defendant’s silence has low probative value because it is “insolubly ambiguous.” 426 U.S. at 617, 96 S.Ct. 2240. Second, the Miranda warnings should not be read to impose a hidden penalty on one who chooses to rely on them. [WJhile it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation [of the crime] subsequently offered at trial. Id. at 618, 96 S.Ct. 2240. Thus, \"Doyle and its progeny, see, e.g., Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982)" }, { "docid": "7473419", "title": "", "text": "that “the use for impeachment purposes of [a defendant’s] silence, at the time of arrest and after receiving Miranda warnings, violate[s] the Due Process Clause of the Fourteenth Amendment.” Doyle, 426 U.S. at 619, 96 S.Ct. 2240. The Court gave two reasons for its holding. First, a defendant’s silence has low probative value because it is “insolubly ambiguous.” 426 U.S. at 617, 96 S.Ct. 2240. Second, the Miranda warnings should not be read to impose a hidden penalty on one who chooses to rely on them. [WJhile it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation [of the crime] subsequently offered at trial. Id. at 618, 96 S.Ct. 2240. Thus, \"Doyle and its progeny, see, e.g., Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982) and Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), mandate that a defendant’s exculpatory testimony cannot be impeached by his post -Miranda silence on the ground that he did not give an explanation for his conduct at the time of arrest.” United States v. Tenorio, 69 F.3d 1103, 1106 (11th Cir.1995) (internal citation omitted). Generally, we review issues of constitutional law de novo. United States v-. Brown, 364 F.3d 1266, 1268 (11th Cir. 2004). When a Doyle violation occurs, we review the government’s use of the defendant’s post -Miranda silence for harmless error. Tenorio, 69 F.3d at 1106 (“When the use of a defendant’s silence results in a constitutional violation, the conviction can stand only if the reviewing court is satisfied beyond a reasonable doubt that the error was harmless.”). However, “[bjefore reaching the question whether the harmless-error standard applies, we must be satisfied that an error of constitutional dimension occurred.” Greer v. Miller, 483 U.S. 756, 761 n. 3, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987). Here, the record" }, { "docid": "4367251", "title": "", "text": "carry no penalty. Doyle, 96 S.Ct. at 2245. The question following Doyle was whether the due process interest — which this Circuit set out standards for vindicating in Chapman — existed only in the narrow contexts in which governmental action had created reliance by the defendant, or whether it extended to the other situations in which the rationale of Hale would logically apply. See Hale, 95 S.Ct. at 2137 (noting that a variety of factors other than Miranda warnings may influence a defendant’s decision to remain silent). Subsequent Supreme Court decisions have clarified that the Doyle protection derives primarily from the implicit assurance of the Miranda warnings and thus is strongest in the context of immediate post-Miranda-vf&vxñxíg interrogation. In Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), the Court held that due process was not offended by the use of a defendant’s pre-arrest silence to impeach his credibility because “no governmental action induced petitioner to remain silent before arrest.” Id. 100 S.Ct. at 2130; see also Anderson v. Charles, 447 U.S. 404, 100 S.Ct. 2180, 2182 & n. 2, 65 L.Ed.2d 222 (1980) (per curiam). Even more tellingly, in Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982) (per curiam), the Court confronted a defendant whose post-arrest silence had been used to impeach his exculpatory story at trial, but who had not been given Miranda warnings during the period he remained silent immediately after his arrest. The Court held that in the absence of the type of assurances contained in the Miranda warnings, the degree of protection to be afforded a defendant against impeachment based on post-arrest silence could be resolved under state rules of evidence. Id. 102 S.Ct. at 1312. Finally, in Wainwright v. Greenfield, 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986), the Court held that using post-Miranda-warning silence as evidence of sanity violated due process. Id. 106 S.Ct. at 641. The Court rebutted the contention that silence was far more probative of sanity than of commission of the underlying offense by noting that Doyle rests on" }, { "docid": "22833547", "title": "", "text": "little probative value because it “can as easily be taken to indicate reliance on the right to remain silent as to support an inference that [his] explanatory testimony was a later fabrication.” Id. at 177, 95 S.Ct. 2133. At the same time, it “has a significant potential for prejudice” because the jury is likely to draw a “strong negative inference” from the defendant’s failure to immediately tell the police what happened. Id. at 180, 95 S.Ct. 2133. A year later, the Court elevated the Hale rule to constitutional status, holding in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), that the Fourteenth Amendment’s Due Process Clause bars state prosecutors from using a defendant’s post-arrest, post-Miraraia-warnings silence to impeach his trial testimony. Id. at 618-19, 96 S.Ct. 2240. The Court pointed out that because Miranda warnings implicitly assure an arrested person that “silence will carry no penalty,” “it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” Id. at 618, 96 S.Ct. 2240. Though Doyle involved a state prosecution, it applies identically to federal prosecutions under the Fifth Amendment. United States v. Balter, 91 F.3d 427, 439 n. 9 (3d Cir.1996) (citation omitted). The Hale-Doyle rule applies only to post-arrest, post-Miramia-warnings silence. In Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982) (per curiam), the Supreme Court held that a defendant’s post-arrest silence before receiving Miranda warnings can be used for impeachment. Id. at 605-07, 102 S.Ct. 1309. In doing so, it explained that the Hale-Doyle rule does not apply to the post-arrest, pre-Miranda warnings situation because it is not unfair to use a defendant’s silence against him absent the “affirmative assurances embodied in the Miranda warnings.” Fletcher, 455 U.S. at 607, 102 S.Ct. 1309. As noted above, it is unclear whether Johnson was given Miranda warnings. But it makes no difference, for either way no due process violation occurred. If Johnson did not receive Miranda warnings, then the prosecutor’s question was permissible under" }, { "docid": "22279251", "title": "", "text": "only to post-Miranda silence. See Wainwright v. Greenfield, 474 U.S. 284, 291 n. 6, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986) (noting that “fundamental unfairness” referred to in Doyle and its progeny “derives from the implicit assurances of the Miranda warnings”); Combs v. Coyle, 205 F.3d 269, 280 (6th Cir.2000) (“[T]he Doyle line of cases clearly rests on the theory that Miranda warnings themselves carry an implicit assurance that silence will not be penalized; actual receipt of the warnings is key. Therefore, the comment on Combs’s pre-Miranda silence did not violate due process.”). Accordingly, because Salinas was not read the Miranda warnings after he was arrested in this case, the prosecutor’s comments did not violate Doyle. B. The Privilege Against Self-Incrimination Salinas also argues that the prosecution’s references to his post-arrest silence violated the Fifth Amendment privilege against self-incrimination. No published decision of this court has addressed whether the prosecution can, at trial, introduce substantive evidence that the defendant remained silent after he was arrested and taken into custody, but before he was given the Miranda warnings. This court has previously held that a prosecutor’s reference to a non-testifying defendant’s pre-arrest silence does not violate the privilege against self-incrimination if the defendant’s silence is not induced by, or a response to, the actions of a government agent. See United States v. Zanabria, 74 F.3d 590, 593 (5th Cir.1996). Moreover, one unpublished decision of this court has interpreted Za-nabria to permit the substantive use of post-arrest, pre-Miranda silence. See United States v. Garcia-Gil, 133 Fed.Appx. 102, 108 (5th Cir.2005) (stating that Zanabria “prevents Garcia-Gil from drawing a distinction based on whether the silence was used as impeachment evidence or as substantive evidence of guilt”). In addition, there is a split among the other federal circuits as to whether a prosecutor’s use of a defendant’s post-arrest, pr e-Miranda silence as substantive evidence of guilt violates the Fifth Amendment privilege against self-incrimination. The Seventh, Ninth, and D.C. Circuits have all squarely held that it does. See United States v. Velarde-Gomez, 269 F.3d 1023, 1028-30 (9th Cir.2001) (en banc); United States v. Whitehead, 200" }, { "docid": "22592011", "title": "", "text": "Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). In Doyle, the petitioner took the stand at his trial for selling marijuana and explained, for the first time, that he had been framed. See id. at 612-13, 96 S.Ct. 2240. For impeachment purposes, the prosecutor asked the petitioner why he had not told this story immediately after his arrest. See id. at 613, 96 S.Ct. 2240. The petitioner was convicted, and he appealed on the ground that cross-examination regarding his post-arrest silence was error. See id. at 615, 96 S.Ct. 2240. The Supreme Court held “that the use for impeachment purposes of petitioners’ silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.” Id. at 619, 96 S.Ct. 2240. The theory underlying Doyle is that while Miranda warnings contain no express assurance that silence will carry no penalty, “such assurance is implicit to any person who receives the warnings.” Id. at 618, 96 S.Ct. 2240. On this reasoning, the Court concluded that it would be fundamentally unfair first to induce a defendant to remain silent through Miranda warnings and then to penalize the defendant who relies on those warnings by allowing the defendant’s silence to be used to impeach an exculpatory explanation offered at trial. See id. Later cases have restricted Doyle and have reaffirmed that the “fundamental unfairness” identified by the Court derives from the implicit assurances of the Miranda warnings. In Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), the Court held that due process is not violated by the impeachment use of prearrest, pre-Miranda warnings silence, see id. at 238-39, 100 S.Ct. 2124. In Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982), the Court held that impeachment use of post-arrest, pre-Miranda warnings silence does not offend due process, see id. at 607, 102 S.Ct. 1309. The Weir Court explained that Doyle was a case in which the government had actually induced silence with Miranda warnings, and it noted that any broadening of Doyle to a" }, { "docid": "5626367", "title": "", "text": "such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial. Id. at 617-18, 96 S.Ct. at 2244-45 (footnotes and citation omitted). The Supreme Court recently reaffirmed Doyle's reasoning in Wainwright v. Greenfield, 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986), in a case where, like the one now before us, the reference to post-Miranda silence was introduced in the government’s case-in-chief. In Wainwright, the Court held that the prosecution’s introduction of the defendant’s silence after receiving Miranda warnings as evidence of his sanity violated the due process clause. Id. at 295, 106 S.Ct. at 641. The Court stated that “Doyle and subsequent cases have ... made clear that breaching the implied assurance of the Miranda warnings is an affront to the fundamental fairness that the Due Process Clause requires.” Id. at 291, 106 S.Ct. at 639; see also Dean v. Young, 777 F.2d at 1241; United States v. Shue, 766 F.2d 1122, 1128 (7th Cir.1985); United States v. Caro, 637 F.2d 869, 874-75 (2d Cir.1981). Even more recently, in Greer v. Miller, — U.S. —, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987), the Court clarified that “the holding of Doyle is that the Due Process Clause bars ‘the use for impeachment purposes’ of a defendant’s postarrest silence.” Id., 107 S.Ct. at 3108 (quoting Doyle, 426 U.S. at 619, 96 S.Ct. at 2245) (emphasis in original). Thus, in Greer, where the trial court sustained an objection to the only question involving the defendant’s postar-rest silence, the Court held that no Doyle violation occurred because the defendant’s postarrest silence “was not submitted to the jury as evidence from which it was allowed to draw any permissible inference.” Id. Therefore, we conclude, in accordance with precedent of the Supreme Court and of this court, that the repeated references to the petitioner’s post-M-randa silence during the government’s case-in-chief violated the due process clause. 2. Prearrest, Pre-Miranda Silence Both the Wisconsin Supreme Court and the district court held that references to Mr. Fencl’s" }, { "docid": "20789647", "title": "", "text": "that the privilege against compulsory self-incrimination is violated. But where as in this case the prosecutor’s reference to the defendant’s opportunity to testify is a fair response to a claim made by defendant or his counsel, we think there is no violation of the privilege. Id. The Court recognized that the defendant’s assertion of the privilege may be costly in either situation, but it emphasized that in order to serve the truth-finding purpose of a criminal trial, “it is important that both the defendant and the prosecutor have the opportunity to meet fairly the evidence and arguments of one another.” Id. at 33, 108 S.Ct. 864. 2. Doyle v. Ohio and the Right to Due Process Eleven years after Griffin, the Supreme Court decided Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). In that case, two defendants were charged with selling marijuana to an informant. In their separate trials, each defendant took the stand and for the first time asserted that he was trying to buy, rather than sell, marijuana. To impeach them, the prosecutor brought out on their respective cross-examinations that neither defendant told that story to the police after he was arrested. The prosecutor also relied on the defendants’ post-arrest silence in his closing arguments. In considering the constitutionality of this practice, the Supreme Court first noted that the defendants had been given Miranda warnings when they were arrest ed and that those warnings implicitly assured them that their silence would carry no penalty. Id. at 618, 96 S.Ct. 2240. The Court then concluded that “[i]n such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” Id. Later, in Wainwright v. Greenfield, 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986), the Court found that the due process concerns recognized in Doyle were equally relevant when a defendant’s post-arrest silence was used to respond to a defense theory, rather than to impeach the defendant. In Wainwright, the defendant presented an insanity defense," }, { "docid": "20789648", "title": "", "text": "To impeach them, the prosecutor brought out on their respective cross-examinations that neither defendant told that story to the police after he was arrested. The prosecutor also relied on the defendants’ post-arrest silence in his closing arguments. In considering the constitutionality of this practice, the Supreme Court first noted that the defendants had been given Miranda warnings when they were arrest ed and that those warnings implicitly assured them that their silence would carry no penalty. Id. at 618, 96 S.Ct. 2240. The Court then concluded that “[i]n such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” Id. Later, in Wainwright v. Greenfield, 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986), the Court found that the due process concerns recognized in Doyle were equally relevant when a defendant’s post-arrest silence was used to respond to a defense theory, rather than to impeach the defendant. In Wainwright, the defendant presented an insanity defense, and the prosecution attempted to rebut that defense by showing that the defendant was of sound enough mind to exercise his right to remain silent after receiving Miranda warnings. The Court held that this violated the defendant’s right to due process as interpreted in Doyle. Id. at 295, 106 S.Ct. 634. These cases reflect an important difference between the violation of due process recognized in Doyle and the violation of the Fifth Amendment privilege recognized in Griffin. Specifically, as the Court held in Robinson, prosecutors may use a defendant’s silence to impeach him or to fairly respond to a defense theory without violating the Fifth Amendment privilege. However, due process generally prohibits prosecutors from using the fact that a defendant remained silent after receiving Miranda warnings, even if that fact is used for purposes of impeachment (as in Doyle) or in response to a defense theory (as in Wainwright). Indeed, the Court has declined to find a violation of due process based on the mention of a defendant’s silence after receiving Miranda warnings only where" }, { "docid": "22592010", "title": "", "text": "Mr. Combs’ intent.” Pet’r Br. at 18. In order to decide whether counsel’s failure to object to the use of the “talk to my lawyer” statement was deficient, we must first determine whether the use of this statement was constitutionally defective such that any reasonable counsel would have objected under the circumstances. Although Combs’s statement referred not to silence but to his right to an attorney, the admissibility of the statement is properly analyzed as a comment on pre-arrest silence. See Wainwright v. Greenfield, 474 U.S. 284, 295 n. 13, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986) (“With respect to post -Miranda warnings ‘silence,’ we point out that silence does not mean only muteness; it includes the statement of a desire to remain silent as well as of a desire to remain silent until an attorney has been consulted.”). Combs’s statement is best understood as communicating a desire to remain silent outside the presence of an attorney. Combs grounds his argument about the admissibility of the statement in the Supreme Court’s decision in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). In Doyle, the petitioner took the stand at his trial for selling marijuana and explained, for the first time, that he had been framed. See id. at 612-13, 96 S.Ct. 2240. For impeachment purposes, the prosecutor asked the petitioner why he had not told this story immediately after his arrest. See id. at 613, 96 S.Ct. 2240. The petitioner was convicted, and he appealed on the ground that cross-examination regarding his post-arrest silence was error. See id. at 615, 96 S.Ct. 2240. The Supreme Court held “that the use for impeachment purposes of petitioners’ silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.” Id. at 619, 96 S.Ct. 2240. The theory underlying Doyle is that while Miranda warnings contain no express assurance that silence will carry no penalty, “such assurance is implicit to any person who receives the warnings.” Id. at 618, 96 S.Ct. 2240. On this reasoning, the Court concluded that it" }, { "docid": "6417508", "title": "", "text": "relief as to Hill’s remaining claims pertaimng to his death sentence and as to all claims pertaining to Ms conviction. We reverse. We conclude that, under the facts of this case, the district court erred in denying Hill habeas relief on his claim that the prosecutor’s comment on his post-Miranda exercise of his rights to remain silent and to seek the assistance of counsel violated Ms due process rights under the Fourteenth Amendment. DISCUSSION In Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91 (1976), the Supreme Court held that “the use for impeachment purposes of [a defendant’s] silence, at the time of arrest and after receiving Miranda warnings, violate[s] the Due Process Clause of the Fourteenth Amendment.” As the Court has recognized in numerous post-Doyle opimons, the Doyle rule “rests on ‘the fundamental unfairness of implicitly assuring a suspect that his silence will not be used against him and then using his silence to impeach an explanation subsequently offered at trial.’” Wainwright v. Greenfield, 474 U.S. 284, 291, 106 S.Ct. 634, 638, 88 L.Ed.2d 623 (1986) (quoting South Dakota v. Neville, 459 U.S. 553, 565, 103 S.Ct. 916, 923, 74 L.Ed.2d 748 (1983)). See also Brecht v. Abrahamson, 507 U.S. 619, 628, 113 S.Ct. 1710, 1716, 123 L.Ed.2d 353 (1993); Greer v. Miller, 483 U.S. 756, 763, 107 S.Ct. 3102, 3107-08, 97 L.Ed.2d 618 (1987). The source of this “implicit assurance” is the giving of Miranda warnings, through which a person taken into custody is expressly advised “that he has the right to remain silent, ... and that he has a right to retained or appointed counsel before submitting to interrogation.” Doyle, 426 U.S. at 617, 96 S.Ct. at 2244. Thus, although the improper references at issue in Doyle concerned only the defendants’ post-Miranda silence, the prohibition extends equally to impeachment use of a defendant’s post-Miranda invocation of the right to counsel. See Wainwright, 474 U.S. at 295 & n. 13, 106 S.Ct. at 640 & n. 13; United States v. McDonald, 620 F.2d 559, 562-63 (5th Cir. 1980); United States v. Daoud, 741" }, { "docid": "5626366", "title": "", "text": "at 28-29. We agree with both the Wisconsin Supreme Court and the district court that Mr. Fencl’s due process rights were violated by the government’s use of his prearrest, post-Miranda silence. In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the Supreme Court held that the prosecution could not use a defendant’s postarrest silence to impeach an exculpatory story told for the first time at trial. Id. at 611, 96 S.Ct. at 2241. The Court stated that referring to the defendant’s silence after he has been given Miranda warnings violates his due process rights. The rationale for this decision is that: Silence in the wake of these warnings may be nothing more than the arrestee’s exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial. Id. at 617-18, 96 S.Ct. at 2244-45 (footnotes and citation omitted). The Supreme Court recently reaffirmed Doyle's reasoning in Wainwright v. Greenfield, 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986), in a case where, like the one now before us, the reference to post-Miranda silence was introduced in the government’s case-in-chief. In Wainwright, the Court held that the prosecution’s introduction of the defendant’s silence after receiving Miranda warnings as evidence of his sanity violated the due process clause. Id. at 295, 106 S.Ct. at 641. The Court stated that “Doyle and subsequent cases have ... made clear that breaching the implied assurance of the Miranda warnings is an affront to the fundamental fairness that the Due Process Clause requires.” Id. at 291, 106 S.Ct. at 639; see also Dean v. Young, 777 F.2d at 1241; United States v. Shue, 766 F.2d 1122, 1128" }, { "docid": "268335", "title": "", "text": "that the prosecutor’s use of the defendant’s post-arrest, post-Miranda warning silence, not as evidence of guilt, but solely to impeach the credibility of the defendant’s alibi testimony violated the due process clause of the fourteenth amendment. The Court gave two reasons for its holding. First, a defendant’s silence has low probative value because it is “insolubly ambiguous.” 426 U.S. at 617, 96 S.Ct. at 2244. The ambiguity arises because Miranda require[d] that a person taken into custody be advised immediately that he has the right to remain silent, that anything he says may be used against him, and that he has a right to retained or appointed counsel before submitting to interrogation. Silence in the wake of these warnings may be nothing more than the arrestee’s exercise of these Miranda rights. Id. Second, the Miranda warnings should not be read to impose a hidden penalty on one who chooses to rely on them. [Wjhile it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation [of the crime] subsequently offered at trial. Id. at 618, 96 S.Ct. at 2245 (footnote omitted). These two concerns provide the framework within which we must judge petitioner’s claim. The Supreme Court has placed some gloss on the right articulated in Doyle. In Doyle itself the Court noted that testimony that a defendant had remained silent would be admissible to rebut the defendant’s story that he had spoken with police after his arrest. In Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), the Court held that the admissibility of pre-arrest, pr e-Miranda warning silence to impeach the defendant’s testimony in a state court proceeding is a state evidentia-ry law question; admission of the evidence would not violate the U.S. Constitution because the implicit assurance of the Miranda warning was not present. In Fletcher v. Weir, 455" }, { "docid": "14972907", "title": "", "text": "is this. That Mr. Tenorio, overnight, in the jail simply thought [the story] up.... And so the next day, although no one in the court called upon him to give an explanation for the acts with which he was charged, he immediately volunteered [one] because he now had a story to give. Defense counsel raised an objection to these comments, which the court again overruled because it understood the arguments were directed to Tenorio’s pre-Miranda silence. It is well established that after Miranda warnings have been given, the government cannot fairly use a defendant’s silence against him at trial as evidence of guilt. Wainwright v. Greenfield, 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986) (silence cannot be used as affirmative proof of a fact in issue); Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) (Fifth Amendment prohibits prosecutorial comment on defendant’s silence); United States v. Rivera, 944 F.2d 1563 (11th Cir.1991) (silence cannot be used as evidence of guilt). Furthermore, Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) and its progeny, see, e.g., Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982) and Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), mandate that a defendant’s exculpatory testimony cannot be impeached by his gost-Miranda silence on the ground that he did not give an explanation for his conduct at the time of arrest. In Doyle, the defendants took the stand and offered an exculpatory explanation for their participation in a drug transaction. On cross-examination, the prosecution impeached their testimony by asking why they had not explained their conduct upon arrest. The Supreme Court held that such cross-examination was fundamentally unfair, and thus violated the Due Process clause of the Fourteenth Amendment, for two reasons. First, a defendant’s silence, being “insolubly ambiguous,” has low probative value. 426 U.S. at 617, 96 S.Ct. at 2244. Second, Miranda warnings carry the implicit assurance “that silence will carry no penalty.” Id. at 618-19, 96 S.Ct. at 2245. When Tenorio objected to the government eliciting" }, { "docid": "5470929", "title": "", "text": "hide, and that any alibi which is subsequently proffered is pure fabrication. The Supreme Court best stated these concerns in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), holding that comment on a defendant’s post-arrest silence violated due process of law: The warnings mandated by [Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966),] as a prophylactic means of safeguarding Fifth Amendment rights .. . require that a person taken into custody be advised immediately that he has the right to remain silent, that anything he says may be used against him, and that he has a right to retained or appointed counsel before submitting to interrogation. Silence in the wake of these warnings may be nothing more than the arrestee’s exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested .... Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial. Id. 426 U.S. at 617-18, 96 S.Ct. at 2244-45 (citations and footnotes omitted). In the present case, defense counsel permitted evidence of Alston’s silence to come in not once, but on three separate occasions. Alston’s defense of alibi stood faint hope of impressing the jury under these circumstances, so in our opinion, the petitioner has adequately demonstrated the existence of prejudice flowing from his counsel’s incom petence, as required under the cause and prejudice caveat to Wainwright v. Sykes. V. We turn next to the merits of Alston’s constitutional claim. There can be no doubt, as indeed the district court held, that the representation rendered by Alston’s court-appointed attorney grossly violated the defendant’s sixth amendment rights, Since 1976, when Doyle v. Ohio was decided, the law has been clear that admitted evidence of post-arrest" }, { "docid": "6043284", "title": "", "text": "the limiting instruction, violates his Fifth Amendment privilege against self-incrimination. We agree. “No person ... shall be compelled in any criminal case to be a witness against himself.” U.S. Const, amend. V. “Due process requires that defendants be able to exercise their constitutional right to remain silent and not be penalized at trial for doing so.” United States v. Baker, 999 F.2d 412, 415 (9th Cir.1993) (quoting United States v. Negrete-Gonzales, 966 F.2d 1277, 1280-81 (9th Cir.1992)); see also Miranda v. Arizona, 384 U.S. 436, 468 n. 37, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (The “prosecution may not ... use at trial the fact that [defendant] stood mute or claimed his privilege in the face of accusation.”). In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the prosecutor used testimony about a defendant’s post-Miranda silence to impeach the defendant at trial. The Supreme Court held that the right to remain silent contains an implicit assurance “that silence will carry no penalty.” Id. at 618, 96 S.Ct. 2240. “[I]t would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” Id. Accordingly, the Court held that “the use for impeachment purposes of [a defendant’s] silence, at the time of arrest and after receiving Miranda warnings, violate[s] the Due Process Clause of the Fourteenth Amendment.” Id. at 619, 96 S.Ct. 2240. We have extended the post-arrest, post-Miranda silence protections in Doyle to the post-arrest, pre-Miranda context. In United States v. Whitehead, 200 F.3d 634 (9th Cir.2000), we held that “regardless whether the Miranda warnings [are] actually given, comment on the defendant’s exercise of his right to remain silent [is] unconstitutional.” Id. at 638. The defendant in Whitehead was taken into custody while his car was searched, but he was not read his Miranda rights at that time. At trial, the prosecutor elicited testimony that the defendant remained silent during this period when he was taken to a holding cell and frisked and his wallet and shoes were searched. During closing," }, { "docid": "22279250", "title": "", "text": "before arrest.” 447 U.S. at 240, 100 S.Ct. 2124. The Fletcher court subsequently rejected the argument that the fact of arrest was sufficient to trigger Doyle’s fundamental fairness concern: “In the absence of the sort of affirmative assurances embodied in the Miranda warnings, we -do not believe that it violates due process of law for a State to permit cross-examination as to postarrest silence when a defendant chooses to take the stand.” 455 U.S. at 607, 102 S.Ct. 1309; see also United States v. Musquiz, 45 F.3d 927, 930-31 (5th Cir.1995) (permitting use of pre-Miranda silence to cross-examine defendant). Although Fletcher clearly permits the use of a defendant’s pr e-Miranda silence to impeach the defendant’s trial testimony, the Supreme Court has not specifically decided whether the prosecution violates Doyle by commenting on the defendant’s pre-Miranda silence when the defendant does not testify in his own defense. Given Fletcher’s emphasis on the affirmative assurances of the Miranda warnings, however, it is clear that, irrespective of whether the defendant testifies at trial, the rationale of Doyle applies only to post-Miranda silence. See Wainwright v. Greenfield, 474 U.S. 284, 291 n. 6, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986) (noting that “fundamental unfairness” referred to in Doyle and its progeny “derives from the implicit assurances of the Miranda warnings”); Combs v. Coyle, 205 F.3d 269, 280 (6th Cir.2000) (“[T]he Doyle line of cases clearly rests on the theory that Miranda warnings themselves carry an implicit assurance that silence will not be penalized; actual receipt of the warnings is key. Therefore, the comment on Combs’s pre-Miranda silence did not violate due process.”). Accordingly, because Salinas was not read the Miranda warnings after he was arrested in this case, the prosecutor’s comments did not violate Doyle. B. The Privilege Against Self-Incrimination Salinas also argues that the prosecution’s references to his post-arrest silence violated the Fifth Amendment privilege against self-incrimination. No published decision of this court has addressed whether the prosecution can, at trial, introduce substantive evidence that the defendant remained silent after he was arrested and taken into custody, but before he was given the" }, { "docid": "9811473", "title": "", "text": "that probativeness is irrelevant. 474 U.S. at 293-94 & n. 12, 106 S.Ct. at 639-40 & n. 12. The reference to ambiguity in Doyle, the Court now observed, just “added weight”, id. at 294, 106 S.Ct. at 640, to the opinion’s real foundation — the desire to prevent the state from undercutting the value of the Miranda warnings. Doyle itself said as much, 426 U.S. at 617-18 n. 8, 96 S.Ct. at 2244-45 n. 8, when responding to the dissent of Justice Stevens, who wrote for the Court in Greenfield. Justice White first offered the anti-mousetrapping ground in a brief opinion concurring in Hale, 422 U.S. at 182-83, 95 S.Ct. at 2139-40. Doyle and all of the opinions in its wake have quoted and adopted this view as the Court's. Doyle put it this way: [Wjhile it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial. 426 U.S. at 618, 96 S.Ct. at 2245. Jenkins, which allows reference to pre-arrest silence, and Fletcher, which allows reference to post-arrest silence if the officers neglected to give Miranda warnings, emphasize that the state did not afford — and therefore could not renege on — any assurance that silence is costless. Cf. Anderson v. Charles, 447 U.S. 404, 408, 100 S.Ct. 2180, 2182, 65 L.Ed.2d 222 (1980) (“Doyle does not apply to cross-examination that merely inquires into prior inconsistent statements. Such questioning makes no unfair use of silence, because a defendant who voluntar ily speaks after receiving Miranda warnings has not been induced to remain silent.”)- Greenfield reinforces this understanding in the course of explaining, 474 U.S. at 292-94, 106 S.Ct. at 639-40, that even reliable inferences from silence are forbidden because they amount to governmental self-contradiction. Doyle thus rests on a single proposition: Having implied when giving warnings that silence is safe, the" } ]

[ { "docid": "11191772", "title": "", "text": "denial of an evidentiary hearing for an abuse of discretion, see Prewitt v. United States, 83 F.3d 812, 820 (7th Cir.1996). Mr. Bruce contends that the district court should have granted him an eviden-tiary hearing on his claim that counsel was ineffective for failing to investigate Thompson’s and Barton’s proposed testimony. Mr. Bruce points out that defense counsel admitted in his affidavit that he did not recall these particular alibi witnesses; Mr. Bruce further notes that counsel provided no factual basis for his assertion that his decision not to subpoena or call alibi witnesses was based on his knowledge and experience as a trial attorney. Under these circumstances, Mr. Bruce argues, the district court should not have presumed that counsel’s failure to investigate and call alibi witnesses was a reasoned judgment based on adequate investigation. Rather, the court should have held a hearing to resolve discrepancies in the record. The principles governing the situation before us are well-established. A district court need not grant an evidentiary hearing in all § 2255 cases. Such a hearing is not required if “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255; see also Menzer v. United States, 200 F.3d 1000, 1006 (7th Cir.2000). In addition, a hearing is not necessary if the petitioner makes allegations that are “vague, conclusory, or palpably incredible,” rather than “detailed and specific.” Machibroda v. United States, 368 U.S. 487, 495, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); see also Prewitt, 83 F.3d at 819. A district court, however, must grant an evidentiary hearing if the petitioner “alleges facts that, if proven, would entitle him to relief.” Stoia v. United States, 22 F.3d 766, 768 (7th Cir.1994). B. To prevail on a claim of ineffective assistance • of counsel, Mr. Bruce must show that defense counsel’s performance was so deficient as to fall below an objective standard of reasonable competence and that the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A" } ]

[ { "docid": "14314447", "title": "", "text": "Id. (internal quotations omitted). If, however, the claim was adjudicated on the merits by the state courts, the petitioner will be entitled to federal habeas relief only if he can establish that the state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” id., § 2254(d)(2). “When reviewing a state court’s application of federal law, we are precluded from issuing the writ simply because we conclude in our independent judgment that the state court applied the law erroneously or incorrectly.” McLuckie, 337 F.3d at 1197. “Rather, we must be convinced that the application was also objectively unreasonable.” Id. “This standard does not require our abject deference, ... but nonetheless prohibits us from substituting our own judgment for that of the state court.” Snow v. Sirmons, 474 F.3d 693, 696 (10th Cir.2007) (internal quotation marks omitted). Ineffective assistance of trial and appellate counsel Cummings claims he was denied effective assistance of both trial and appellate counsel. Generally speaking, “[a] claim by a habeas petitioner ‘that counsel’s assistance was so defective as to require reversal of a ... death sentence has two components.’ ” Anderson v. Sirmons, 476 F.3d 1131, 1141 (10th Cir.2007) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “ ‘To be entitled to relief, a petitioner must prove both that his counsel’s performance was deficient and that the deficient performance prejudiced his defense.’ ” Id. (quoting Bryan v. Mullin, 335 F.3d 1207, 1216 (10th Cir.2003) (en banc)). 1) Claims regarding trial counsel Cummings contends his trial counsel was ineffective for conceding Cummings’ guilt to non-charged offenses, failing to challenge what Cummings now asserts was his false confession to authorities that he assisted in disposing of Judy Mayo’s body, failing to seek DNA testing of critical evidence, and failing to gather medical or psychological records on Sherry and Juanita Cummings. a) Failure" }, { "docid": "17992999", "title": "", "text": "the record alone. Compare Valdez v. Cockrell, 274 F.3d 941, 950-51 (5th Cir.2001) (holding that AED-PA deference applies to state-court findings of fact based on a review of the record), cert. denied, 537 U.S. 883, 123 S.Ct. 106, 154 L.Ed.2d 141 (2002), with Bryan v. Mullin, 335 F.3d 1207, 1215-16 (10th Cir.2003) (en banc) (holding that pre-AEDPA standards apply to ineffective-assistance-of-counsel claims ’ unless the state court holds an evidentiary hearing). Finally, because the district court credited counsel’s testimony, we need not decide how we would resolve a case in which counsel’s stated reasons were not believed. Counsel’s strategy was to present Petitioner as “a normal, regular guy” and to show that the child, who was “caught in the middle” of a breakup between her mother and stepfather, had a motive to fabricate a story of sexual abuse, perhaps to “draw attention to herself’ or to “strike back at her mother.” Counsel “shied away from” general character evidence, such as Stoll evidence, because he did not want to risk having the state introduce testimony concerning Petitioner’s affair with his brother’s wife (the child’s mother), which occurred while Petitioner was living in the family home, and which the child had witnessed on one occasion. Counsel reasonably determinated that this evidence might have suggested to the jury that Petitioner “is not a good person.” There also was evidence that the child resembled her mother and that the mother had broken off the affair, facts that would have enabled the state to argue that Petitioner may have abused the child as revenge against her mother or even as a means of imagining the continuation of the affair. Additionally, counsel was concerned about evidence of Petitioner’s membership in FERET, an organization devoted to finding missing children. Counsel thought that this membership “could be misinterpreted .... We didn’t want anybody to think that [Petitioner] had an inordinate interest in small children.” We conclude that the California Court of Appeal’s decision was not based on an unreasonable determination of the facts in the light of the evidence presented in the state-court proceedings and that the decision" }, { "docid": "21417216", "title": "", "text": "petition, Martin states that “[cjounsel’s failure to investigate the facts and relevant law in [his] case caused counsel to give [him] extremely bad and prejudicial advice regarding a thirty (30) year plea offer by the [government.” Had he been “better informed with regard to the facts and law relevant to his case,” Martin claims that “he would have accepted the [gjovemment’s 30-year plea offer instead of risking a trial in which he was found guilty and, ultimately, being sentenced to LIFE imprisonment.” According to Martin, “he was prepared to accept the 30-year plea agreement when offered,” but “ultimately rejected the plea on the basis of counsel’s flawed advice.” Based on the foregoing statements, the district court held that Martin had not presented evidence that his attorney was ineffective with respect to the plea negotiation process. In so holding, the court determined that “nothing in the record, apart from Martin’s assertions, supports a finding that the government offered him a 30-year plea deal,” and even “assuming that such an offer was made at some point, Martin has not established that his attorney was ineffective in allegedly advising him to reject it.” Nevertheless, the district court granted a certificate of appeala-bility on the question of whether Martin’s conclusory assertion that he would have accepted a plea agreement, standing alone, is sufficient to trigger the need for an evidentiary hearing on the issue. II. DISCUSSION When reviewing the denial of a federal prisoner’s § 2255 petition, we review the district court’s legal conclusions de novo, its factual findings for clear error, and its decision to forgo holding an eviden-tiary hearing for abuse of discretion. Osagiede v. United States, 543 F.3d 399, 408 (7th Cir.2008). Because an error of law is, by definition, an abuse of discretion, United States v. Beltran, 457 F.3d 695, 702 (7th Cir.2006), any error of law in dismissing Martin’s petition without an evidentiary hearing would constitute an abuse of discretion. It is well-established that a district court need not grant an evidentiary hearing in all § 2255 cases. Such a hearing is not required if “the motion and the" }, { "docid": "19908243", "title": "", "text": "incorrect; the state court must be unreasonable. See Danks v. Davis, 355 F.3d 1005, 1008 (7th Cir.2004). We review the district court’s legal conclusions de novo and its factual findings for clear error. See Charlton v. Davis, 439 F.3d 369, 372 (7th Cir.2006). The legal rules governing Eckstein’s claim that his trial counsel was ineffective were established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, a defendant must show that her counsel’s performance was objectively unreasonable or deficient and that she was prejudiced as a result. Id. at 687, 104 S.Ct. 2052. “[T]here is a strong presumption that [an] attorney performed effectively.” Berkey v. United States, 318 F.3d 768, 772 (7th Cir.2003). Furthermore, “[t]he reasonableness of counsel’s performance is to be evaluated from counsel’s perspective at the time of the alleged error and in light of all the circumstances.” Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). Even if counsel’s performance was deficient, a petitioner must also show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” meaning “a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. “In weighing the effect of counsel’s errors, the court must consider the totality of the evidence before the judge.... [A] verdict or conclusion that is overwhelmingly supported by the record is less likely to have been affected by errors than one that is only weakly supported by the record.” Hough v. Anderson, 272 F.3d 878, 891 (7th Cir.2001). Eckstein complains about two aspects of his lawyer’s performance, which we review below. It is important to recall, however, that it is not enough to criticize counsel for failing to take particular steps. Instead, one must also address what action counsel did take, and then evaluate her performance as a whole. See U.S. ex rel. Hampton v. Leibach, 347 F.3d 219, 248 n. 14 (7th Cir.2003). With that in mind, we turn to Eckstein’s first point: that counsel was ineffective for" }, { "docid": "23437978", "title": "", "text": "§ 2254(e)(2). See Aeid v. Bennett, 296 F.3d 58, 64 (2d Cir.2002) (\"In these circumstances, where the case may be disposed of on the merits even considering the evidence produced at the disputed eviden-tiary hearing, we refrain from examining the arguments concerning the propriety of the evidentiary hearing.”); see also Williams v. Taylor, 529 U.S. 420, 437, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000) (\"Federal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings.”); Boyko v. Parke, 259 F.3d 781, 789-91 (7th Cir.2001). Nor must we consider the preliminary question of whether the Superintendent should be deemed to have waived any objection to that hearing by not raising the issue on appeal. See Aeid, 296 F.3d at 64 (declining, where this Court could dispose of the case on its merits, to address the argument that the respondent had waived any objection to an evidentiary hearing by repeated failures to object to the hearing); Bryan v. Mullin, 335 F.3d 1207, 1214 (10th Cir.2003) (declining to address “what steps a respondent must undertake to preserve an objection, predicated on § 2254(e)(2), to a district court decision to grant a habeas petitioner an evidentiary hearing,” where the district court had not erred in holding the hearing); cf. Acosta v. Artuz, 221 F.3d 117, 121 (2d Cir.2000) (holding that a district court has the power to raise the AED-PA limitations period sua sponte because \"the defense implicates values beyond the interests of the parties”). . In Sparman v. Edwards, 154 F.3d 51, 52 (2d Cir.1998) (per curiam), we explained that \"a district court facing the question of constitutional ineffectiveness of counsel should, except in highly unusual circumstances, offer the assertedly ineffective attorney an opportunity to be heard and to present evidence, in the form of live testimony, affidavits, or briefs.\" We offer defense counsel this opportunity in part because legitimate strategic considerations that may have guided an attorney's conduct are not always \"transparent on a cold record.” Eze v. Senkowski, 321 F.3d 110, 136 (2d Cir.2003). . See," }, { "docid": "2226825", "title": "", "text": "525 (2008). The court held, “[Petitioner] must allege more than that he received inadequate assistance; he must allege facts sufficient to overcome AEDPA deference to the state court’s fact-findings and legal conclusion to the contrary.” Id. The Sixth and Ninth Circuits have also noted the deferential standards of § 2254(d) must be taken into account when determining whether petitioner has made out a claim for habeas relief. See Estrada v. Scribner, 512 F.3d 1227, 1235 (9th Cir.2008), cert. denied, — U.S.-, 128 S.Ct. 2973, — L.Ed.2d- (2008); Ivory v. Jackson, 509 F.3d 284, 298 (6th Cir.2007), cert. denied, — U.S.-, 128 S.Ct. 1897, 170 L.Ed.2d 765 (2008). The majority suggests that because Wilson was diligent in his efforts to obtain an evidentiary hearing in state court, but was denied that hearing, de novo review is appropriate. This is not so. Diligence does not control our standard of review. Rather, the requirement that a petitioner show diligence is merely one of two procedural hurdles a petitioner must cross before receiving an evidentiary hearing in federal court. After the enactment of AEDPA, a federal habeas petitioner must show he was diligent in developing the factual basis for his claim in state court (hurdle number one), and that his allegations, if true, would entitle him to habeas relief (hurdle number two). In a case like this, where the state court has decided petitioner’s claim on the merits, this sec ond hurdle is even higher because petitioner must show the state court’s adjudication of his claim involved an unreasonable determination of the facts or unreasonable application of clearly established federal law. The majority relies heavily upon our precedents in Bryan v. Mullin, 335 F.3d 1207, 1215 (10th Cir.2003) (en banc), and Miller v. Champion, 161 F.3d 1249, 1254 (10th Cir.1998), to conclude we review Wilson’s ineffective assistance of counsel claim without deference to the state court’s judgment. But to the extent those cases rely on § 2254(e)(2)’s diligence inquiry to determine our standard of review, they are no longer good law. Compare Bryan, 335 F.3d at 1215 (concluding that because petitioner was diligent, “the" }, { "docid": "22406634", "title": "", "text": "(5th Cir.1982) (en banc) (remanding to district court because more district court findings needed to reach conclusion on ineffective assistance issue); Harich v. Dugger, 844 F.2d 1464, 1470 (11th Cir.1988) (en banc) (deciding question of ineffectiveness without remanding for district court factfindings). And we note that, neither party, in the briefs, contended that the record is insufficient and requires remand. Moreover, courts have decided ineffective assistance claims on direct appeal, without the benefit of district court factfinding. See, e.g., United States v. Shukri, 207 F.3d 412, 418 (7th Cir.2000) (denying ineffective assistance of counsel relief on direct appeal even though issue was not raised to district court below because both parties requested it and claim of incompetence could be rejected considering record of trial); United States v. Fortson, 194 F.3d 730, 736 (6th Cir.1999) (on direct appeal, deciding no deficient performance because record was adequately developed to allow the court to assess the merits of the issue, government did not contend that record was insufficient, court concluded further factual development was unnecessary and because court could \"conceive of numerous reasonable strategic motives” for counsel’s actions at trial (emphasis added)). And any alleged lack of evidence in this record necessitates neither a remand nor a ruling for Petitioner, but must be considered in the light of Petitioner’s burden to overcome the presumption of competence, that is, to show ineffective assistance. Cf. United States v. Montes-Mercado, 2000 WL 623143 (9th Cir.2000) (unpublished opinion) (refusing to conclude counsel ineffective for failing to provide reasons for his acts at the evidentiary hearing in part because petitioner never asked for an explanation); United States v. Torres, 845 F.2d 1165, 1172 (2d Cir.1988) (rejecting ineffective assistance claim, not considered by district court, as matter of law because proffered evidence of deficient performance did not \"rise to the level necessary to overcome the strong presumption that counsel’s performance was reasonable under [Strickland]”). . Never do we even hint that this course was either the best way or the only reasonable way to proceed in this case. To decide the constitutional question, we do not need to decide" }, { "docid": "13816758", "title": "", "text": "of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies .... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which ive expect ivill often be so, that course should be followed. Id. at 697, 104 S.Ct. 2052 (emphasis added). Our Court has followed this approach. See McAleese v. Mazurkiewicz, 1 F.3d 159, 170-71 (3d Cir.1993). To demonstrate prejudice, Boyd “must show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Albrecht v. Horn, 485 F.3d 103, 127 (3d Cir.2007) (internal quotation marks omitted). Where, as here, a petitioner alleges that counsel’s ineffective assistance cost him the opportunity to take a plea, he must demonstrate a reasonable probability that, but for counsel’s ineffective assistance, he would have accepted the foregone plea offer. See Hill, 474 U.S. at 59, 106 S.Ct. 366; see also United States v. Jones, 336 F.3d 245, 254 (3d Cir.2003); United States v. Day, 969 F.2d 39, 45 (3d Cir.1992). This showing requires “some ‘objective evidence’ that a petitioner would have accepted a plea offer.” Jones, 336 F.3d at 254 (citation omitted); cf. Meyers v. Gillis, 142 F.3d 664, 668-69 (3d Cir. 1998) (finding ineffective assistance in the context of a plea offer where the petitioner’s testimony that he would have rejected a plea was corroborated by other evidence in the record). 2. With the foregoing standard in mind, we should conclude that the state court record resolves the question of Strickland prejudice. In his affidavit before the Superior Court on direct appeal, Boyd admitted that he was aware of the initial plea offer and its rejection. Boyd was told several times during his guilty plea hearing that the court could sentence him to 12^-25 years. He also stated that he had discussed his case with his" }, { "docid": "22821161", "title": "", "text": "trial would have been different had counsel acted differently. Accordingly, none of counsel’s acts, either alone or cumulatively, rise to the level necessary to justify granting the habeas petition. C. Parker is not entitled to an evidentia- . ry hearing Parker also argues that he is entitled to an evidentiary hearing on Ms ineffective assistance claim. AEDPA restricts our ability to grant evidentiary hearings to certain limited circumstances. Section 2254(e)(2) provides that “[i]f the applicant has failed to develop the factual basis of a claim in state court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant” can satisfy one of the two exceptions listed in § 2254(e)(2)(A) and (B). If, however, the habeas petitioner did not “fail[ ] to develop the factual basis of a claim in State court,” id., then § 2254(e)(2) is not applicable and we must analyze whether a hearing is required under the pre-AEDPA standard. Bryan v. Mullin, 335 F.3d 1207, 1214 (10th Cir.2003) (en banc). Under the'pre-AEDPA standard, a ha-beas petitioner “must first make allegations which, if proved, would entitle him to relief.” Medina v. Barnes, 71 F.3d 363, 366 (10th Cir.1995) (citations omitted). “If the petitioner does that the court must then determine whether petitioner is entitled to an evidentiary hearing to resolve any disputed facts underlying his claims.” Id; see also Cannon v. Mullin, 383 F.3d 1152, 1175 (10th Cir.2004) (under pre-AEDPA standard, petitioner is entitled to an evidentiary hearing if “his allegations, if true and not contravened by the existing factual record, would entitle him to habeas relief’). No hearing is necessary if we can resolve the petitioner’s claims on their merits based solely on the record before us. See, e.g., Torres v. Mullin, 317 F.3d 1145, 1161 (10th Cir.2003). Thus, a threshold question is whether the habeas petitioner was diligent in trying to develop the record in state court. “[A] failure- to develop the factual basis of a claim is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.”. Williams v. Taylor, 529" }, { "docid": "7377606", "title": "", "text": "104 S.Ct. 2052; see also Smith v. Gaetz, 565 F.3d 346, 352-53 (7th Cir.2009). Koons next argues that trial counsel should have filed a motion to suppress the evidence that resulted from the allegedly improper search of Koons’s home. See Gentry v. Sevier, 597 F.3d 838, 851-52 (7th Cir.2010) (holding that counsel’s failure to file a motion to suppress constituted deficient assistance). Again, however, since Koons never told trial counsel that police forced him to consent to the home search, and, thus, never gave trial counsel any reason to believe that a motion to suppress would have any chance of success, trial counsel’s failure to seek suppression was objectively reasonable and does not constitute ineffective assistance. See Strickland, 466 U.S. at 689, 104 S.Ct. 2052. We conclude that the record forecloses any claim that Koons received constitutionally ineffective assistance during the plea process, or that Koons did not otherwise knowingly and voluntarily plead guilty. We thus affirm the district court’s denial of Koons’s habeas petition. B. Evidentiary Hearing Koons also argues that the district court erroneously refused to conduct an evidentiary hearing to evaluate his ineffective assistance claim. “The court should grant an evidentiary hearing on a § 2255 motion when the petitioner alleges facts that, if proven, would entitle him to relief.” Hutchings, 618 F.3d at 699 (internal quotation marks and citation omitted). But courts may “deny an evidentiary hearing where the motion, files, and records of the case conclusively show that the prisoner is entitled to no relief.” Torzala v. United States, 545 F.3d 517, 525 (7th Cir.2008); 28 U.S.C. § 2255(b); see also Hutchings, 618 F.3d at 699-700. Reviewing for abuse of discretion, Hutchings, 618 F.3d at 700; Almonacid v. United States, 476 F.3d 518, 521 (7th Cir.2007), we affirm the district court’s denial of Koons’s motion for an evidentiary hearing. As our discussion above demonstrates, the record conclusively shows that Koons is not entitled to relief. III. Conclusion For the foregoing reasons, we Affirm the judgment of the district court. . The record does not conclusively indicate how many officers went to Koons's workplace. This opinion" }, { "docid": "13963337", "title": "", "text": "see also, e.g., Drake v. Clark, 14 F.3d 351, 356 (7th Cir.1994). However, when the failure to present the promised testimony cannot be chalked up to unforeseeable events, the attorney’s broken promise may be unreasonable, for “little is more damaging than to fail to produce important evidence that had been promised in an opening.” Anderson v. Butler, 858 F.2d 16, 17 (1st Cir.1988); see also Washington v. Smith, supra, 219 F.3d at 634 (failure to produce witness identified in notice of alibi and mentioned during voir dire gave rise to “negative inference” against the defendant). U.S. ex rel. Hampton v. Leibach, 347 F.3d 219, 257 (7th Cir.2003); see also McAleese v. Mazurkiewicz, 1 F.3d 159, 166-67 (3rd Cir.1993) (“The rationale for holding such a failure to produce promised evidence ineffective is that when counsel primes the jury to hear a different version of the events from what he ultimately presents, one may infer that reasonable jurors would think the witnesses to which counsel referred in his opening statement were unwilling or unable to deliver the testimony he promised.”); Harris v. Reed, 894 F.2d 871 (7th Cir.1990) (the failure to fulfill promises made during opening statements may constitute deficient representation); Anderson v. Butler, 858 F.2d 16, 17 (1st Cir.1988) (“little is more damaging than to fail to produce important evidence that had been promised in an opening”); but cf. Harrison v. Motley, 478 F.3d 750, 758 n. 4 (6th Cir.2007), cert. den. — U.S.-, 128 S.Ct. 444, 169 L.Ed.2d 310 (2007) (expressing no opinion as to whether the failure to fulfill promises made during opening statements, by itself, is a “clearly established” basis for a claim of ineffective assistance of counsel). Because Lydia Ceruti was the only witness who could corroborate Petitioner’s version of events and because counsel failed to call her as a witness despite his promise to do so, counsel’s performance was deficient. The remaining question is whether counsel’s deficient performance prejudiced the defense. When an attorney fails to present evidence, the question is whether the evidence which was not revealed, “might well have influenced the jury’s appraisal of" }, { "docid": "3344549", "title": "", "text": "expose him to a penalty and, to what degree. Given Howard’s pro se status when pursuing his § 2255 petition before the district court, we shall interpret this allegation as a sufficient statement that he would not have entered the plea and would have taken the case to trial if his counsel had not permitted him to plead while incompetent. See United States v. Seesing, 234 F.3d 456, 462 (9th Cir.2000) (“Pro se complaints and motions from prisoners are to be liberally construed.”). This specific allegation, if true, would establish prejudice. See Baramdyka, 95 F.3d at 846-47. Cf. Bouchillon v. Collins, 907 F.2d 589, 595 (5th Cir.1990) (holding that mentally incompetent petitioner had met prejudice prong of the Strickland test “because if [he] was incompetent his plea was ineffective and he was prejudiced by its entry”). The government attempts to show conclusively that Howard would not have opted against entering a plea, arguing that the evidence against Howard was “overwhelming,” that his only defense was to suppress evidence and that Howard received a “substantial benefit” by pleading because doing so reduced his sentencing range from 360 months to life to 292 to 365 months. As with the government’s explanations for Howard’s behavior at the plea hearing, these arguments are plausible and may be factually correct, but that is for the district court to determine after an eviden-tiary hearing. The record does not conclusively establish that there is no “reasonable probability” that Howard would have gone to trial and thus that, but for counsel’s errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 690, 104 S.Ct. 2052. III. Howard’s allegations are sufficiently specific to meet the low threshold for an evidentiary hearing on his claim of ineffective assistance of counsel. The record before us is insufficient to show conclusively that Howard is not entitled to any relief. Thus the district court erred in denying Howard’s § 2255 petition without having held an evidentiary hearing. REVERSED and REMANDED for further proceedings consistent with this opinion. . We take judicial notice of these facts about the suppression hearing" }, { "docid": "9283533", "title": "", "text": "deemed tactical.\" U.S. ex rel. Hampton v. Leibach , 347 F.3d 219, 249 (7th Cir. 2003). \"A strategic choice based on a misunderstanding of law or fact ... can amount to ineffective assistance.\" Vinyard , 804 F.3d at 1225. Jansen argues that Steinback's conduct was objectively unreasonable because he \"made no investigation into any of the government's purported case, discovery or otherwise.\" It is true that generally, \"a reasonably competent lawyer will attempt to learn all of the relevant facts of the case, make an estimate of a likely sentence, and communicate the results of that analysis to the client before allowing the client to plead guilty.\" Bethel v. United States , 458 F.3d 711, 717 (7th Cir. 2006). However, \"strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.\" Strickland , 466 U.S. at 690-91, 104 S.Ct. 2052. Put another way, counsel can \"make a reasonable decision that makes particular investigations unnecessary.\" Id. at 691, 104 S.Ct. 2052. Moreover, \"when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable.\" Id. Jansen points out that Steinback did not request records, interview witnesses, or examine \"the extent of the government's investigation into other crimes, and the government's other possible charges.\" According to Jansen, some investigation was necessary to \"test the government's evidence\" and \"put it through some form of adversarial testing.\" He maintains that Steinback's proffered \"strategic reasons for not conducting investigation into the government's evidence\" are merely \"hollow excuses.\" Moreover, Jansen claims that Steinback \"could not have appropriately advised [him] to plead guilty to counts outside the statute of limitations if he did not know what the alternative counts could or would be.\" Jansen's argument is unpersuasive. The district court made the sound factual finding that Jansen hired Steinback \"to negotiate the best possible plea agreement,\" not to go to trial: The evidence makes clear ... that by the time defendant hired Steinback he had" }, { "docid": "21417217", "title": "", "text": "has not established that his attorney was ineffective in allegedly advising him to reject it.” Nevertheless, the district court granted a certificate of appeala-bility on the question of whether Martin’s conclusory assertion that he would have accepted a plea agreement, standing alone, is sufficient to trigger the need for an evidentiary hearing on the issue. II. DISCUSSION When reviewing the denial of a federal prisoner’s § 2255 petition, we review the district court’s legal conclusions de novo, its factual findings for clear error, and its decision to forgo holding an eviden-tiary hearing for abuse of discretion. Osagiede v. United States, 543 F.3d 399, 408 (7th Cir.2008). Because an error of law is, by definition, an abuse of discretion, United States v. Beltran, 457 F.3d 695, 702 (7th Cir.2006), any error of law in dismissing Martin’s petition without an evidentiary hearing would constitute an abuse of discretion. It is well-established that a district court need not grant an evidentiary hearing in all § 2255 cases. Such a hearing is not required if “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255; see also Menzer v. United States, 200 F.3d 1000, 1006 (7th Cir.2000). In addition, a hearing is not necessary if the petitioner makes allegations that are “vague, conclusory, or palpably incredible,” rather than “detailed and specific.” Kafo v. United States, 467 F.3d 1063, 1067 (7th Cir.2006). A district court, however, must grant an evidentiary hearing if the petitioner “alleges facts that, if proven, would entitle him to relief.” Id. (citation and internal quotation marks omitted); Stoia v. United States, 22 F.3d 766, 768 (7th Cir.1994). Martin alleges that trial counsel’s failure to investigate the facts and law relevant to his case caused counsel to give him “extremely bad and prejudicial advice” regarding a 30-year plea offer by the government. But for counsel’s “flawed advice,” Martin alleges that he would have accepted the government’s offer. On appeal, Martin contends that these allegations are sufficient, as a matter of law, to require the district court to hold" }, { "docid": "23052097", "title": "", "text": "that he received ineffective assistance of counsel at the suppression phase of the case due to counsel’s failure to interview witnesses and subpoena the radio dispatch. We decline to consider this claim on direct appeal. “Ineffective assistance of counsel claims ‘should be brought in collateral proceedings, not on direct appeal. Such claims brought on direct appeal are presumptively dismissible, and virtually all will be dismissed.’ ” United States v. Calderon, 428 F.3d 928, 931 (10th Cir.2005) (quoting United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir.1995) (en banc)). On direct appeal, the record is not developed with the purpose of showing counsel’s competence, and the district court has not yet had an opportunity to consider counsel’s effectiveness. See Massaro v. United States, 538 U.S. 500, 505-06, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003). By contrast, a § 2255 proceeding affords both the defendant and the government an opportunity to demonstrate whether counsel rendered effective assistance. Furthermore, the district court will be the first to pass upon the effectiveness of counsel, and because the judge considering the § 2255 motion will usually be the same judge who presided at trial, the district court “should have an advantageous perspective for determining the effectiveness of counsel’s conduct and whether any deficiencies were prejudicial.” Id. at 506, 123 S.Ct. 1690. These concerns compel dismissal without prejudice of Polly’s ineffective assistance of counsel claim here on direct appeal. Although Polly mentioned at his plea hearing that he thought his counsel failed to investigate and bring forward certain evidence that was relevant to the suppression issue, Polly did not have a chance at that time to develop fully a record that would support such a claim. Therefore, we conclude that Polly’s claim that his counsel provided ineffective assistance during the suppression phase must be dismissed without prejudice as improperly raised on direct appeal. III. Conclusion For the foregoing reasons, we AFFIRM Polly’s conviction and sentence. We DISMISS without prejudice his claim of ineffective assistance of counsel. . These facts are largely drawn from the evidence found at the suppression hearing. The parties did not include" }, { "docid": "2520666", "title": "", "text": "if Mr. Hunter had been called at Campbell’s trial and refused to cooperate, his original taped statement to police could have been admitted as substantive evidence under Illinois law. See People v. Campbell, 332 Ill.App.3d 721, 266 Ill.Dec. 41, 773 N.E.2d 776, 789-90 (2002) (Knecht, J., dissenting), citing 725 Ill. Comp. Stat. 5/115—10.1 (c)(2) (C) (1998). Even if the jury ultimately discounted Mr. Hunter’s identification of Peete as a participant, his testimony still would have been valuable because he did not identify Campbell as a participant. At no point did he waver on that critical fact. Because the case against Campbell was far from overwhelming and the omitted exculpatory testimony relatively strong, counsel’s unprofessional errors undermine our confidence in the outcome of Campbell’s trial. See United States ex rel. Hampton v. Leibach, 347 F.3d 219, 250 (7th Cir.2003) (“Opposing testimony from other eyewitnesses to the attacks, positing that Hampton was not a participant, would have given the jury a qualitatively different and more powerful reason to believe that the State’s witnesses were mistaken in their identifications of Hampton.”). Accordingly, assuming the witnesses would have testified credibly and consistently with their affidavits and statements to the police, we hold that counsel’s deficient performance prejudiced Campbell. IV. Remedy Campbell has satisfied § 2254(d) on his claim of ineffective assistance of counsel, but that does not necessarily entitle him to the issuance of the writ. “Whether the petitioner is actually entitled to relief—whether under § 2254(a) he is in custody in violation of the Constitution or laws or treaties of the United States—is a separate question.” Mosley v. Atchison, 689 F.3d 838, 853 (7th Cir.2012), citing 28 U.S.C. § 2254(a). We cannot answer that question on the record before us. Throughout this opinion we have assumed, as the state courts and district court did, that defense counsel did not actually interview these witnesses and that these witnesses would have testified credibly and consistently with their affidavits and statements to the police. Having concluded that the affidavits and statements, if true, are sufficient to warrant habeas relief, we still have no factual findings on" }, { "docid": "20471524", "title": "", "text": "could be a ‘mean person.’ ” Id. We have recognized that “the Constitution requires defense counsel to conduct a reasonable investigation into the defendant’s background and present it to the jury,” Byrd v. Collins, 209 F.3d 486, 526 (6th Cir.2000), and that failure to do so may constitute ineffective assistance of counsel, Poindexter v. Mitchell, 454 F.3d 564, 577 (6th Cir.2006). Nonetheless, we find counsel’s performance reasonable under the circumstances. Zagorski’s counsel did investigate, seeking mitigation evidence from Dr. Bursten and Zagorski’s mother. That they failed to investigate beyond these failed avenues does not render their performance deficient; “counsel’s performance will not necessarily be deficient because of a failure to investigate, so long as counsel’s decision not to investigate is reasonable under the circumstance.” Hawkins v. Coyle, 547 F.3d 540, 548 (6th Cir.2008). Zagorski has presented no reason to label his counsel’s efforts as anything other than reasonable, especially given his insistence — despite being advised against and understanding the consequences — that counsel not present mitigation evidence. Given trial counsels’ reasonable efforts, we conclude that the Tennessee Supreme Court’s decision was neither contrary to nor an unreasonable application of Supreme Court precedent. Our conclusion follows the Supreme Court’s recent determination in Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). The Schriro Court examined a state court’s finding that a criminal defendant who did not want his trial counsel to present mitigation evidence, like Zagorski, did not receive ineffective assistance of counsel. The Court held that the state court’s conclusion was not an unreasonable determination of the facts and denied the ineffective assistance claim notwithstanding the presentation of mitigation evidence in post-conviction proceedings. Id. at 480-81, 127 S.Ct. 1933. This circuit acknowledges that “Schriro mirrors cases from our own circuit that have held that a client who interferes with her attorney’s attempts to present mitigating evidence cannot then claim prejudice based on the attorney’s failure to present that evidence.” Owens v. Guida, 549 F.3d 399, 406 (6th Cir.2008). IV. We affirm the district court’s denial of Zagorski’s petition for a writ of habeas corpus. ." }, { "docid": "23596177", "title": "", "text": "Gordon maintains that the only evidence in the record supports the conclusion that there were no strategic reasons behind the failure of his counsel to object to the absence of inquiry about his right to allocute. In an affidavit attached to his habeas motion, Gordon states that, had he been allowed to allocute, he would have told the court he had been entirely truthful with the government. The opinion of the district court that Gordon had not been entirely truthful with the government was the basis for its denial of the motion by the government for a downward departure. Because the district court made no findings as to the Strickland test, Gordon maintains that we should remand the matter so that those findings can be made. We reject Gordon’s argument. An evidentiary hearing is not required whenever a petitioner asserts a claim of ineffective assistance under section 2255. Vick v. United States, 730 F.2d 707, 708 (11th Cir.1984). An evidentiary hearing is not required when “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255. It is clear from the record that the performance of Gordon’s counsel was not deficient, and Gordon is entitled to no relief. To establish that counsel’s performance was deficient, a petitioner must meet a high burden. “There is a strong presumption that counsel’s performance was reasonable and adequate.” Michael, 430 F.3d at 1320. To overcome that presumption, “a petitioner must establish that no competent counsel would have taken the action that his counsel did take.” Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir.2000) (en banc). Because this standard is objective, id. at 1315 n. 15, it matters not whether the challenged actions of counsel were the product of a deliberate strategy or mere oversight. The relevant question is not what actually motivated counsel, but what reasonably could have motivated counsel. See Roe v. Flores-Ortega, 528 U.S. 470, 481, 120 S.Ct. 1029, 1037, 145 L.Ed.2d 985 (2000) (“The relevant question is not whether counsel’s choices were strategic, but whether they" }, { "docid": "7377607", "title": "", "text": "erroneously refused to conduct an evidentiary hearing to evaluate his ineffective assistance claim. “The court should grant an evidentiary hearing on a § 2255 motion when the petitioner alleges facts that, if proven, would entitle him to relief.” Hutchings, 618 F.3d at 699 (internal quotation marks and citation omitted). But courts may “deny an evidentiary hearing where the motion, files, and records of the case conclusively show that the prisoner is entitled to no relief.” Torzala v. United States, 545 F.3d 517, 525 (7th Cir.2008); 28 U.S.C. § 2255(b); see also Hutchings, 618 F.3d at 699-700. Reviewing for abuse of discretion, Hutchings, 618 F.3d at 700; Almonacid v. United States, 476 F.3d 518, 521 (7th Cir.2007), we affirm the district court’s denial of Koons’s motion for an evidentiary hearing. As our discussion above demonstrates, the record conclusively shows that Koons is not entitled to relief. III. Conclusion For the foregoing reasons, we Affirm the judgment of the district court. . The record does not conclusively indicate how many officers went to Koons's workplace. This opinion refers to a single officer, although more than one may have been present during the events discussed. . We construe Koons’s pro se pleadings liberally and find that his sworn affidavit incorporates by reference the memorandum he submitted supporting his § 2255 petition. See Hutchings, 618 F.3d at 696 (writing that the defendant \"properly incorporated by reference his Memorandum into his sworn petition, especially considering his pro se status at the time of his original filing,” even though his Memorandum was not signed under penalty of perjury). See generally Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir.2001) (discussing our willingness to liberally construe pro se pleadings)." }, { "docid": "8086972", "title": "", "text": "courts — for reasons beyond the control of the petitioner — never considered the claim in a full and fair hearing.” Matheney, 253 F.3d at 1039. See also Davis, 388 F.3d at 1061; Hampton v. Leibach, 347 F.3d 219, 244 (7th Cir.2003). The district court did not consider Richardson’s request for an evidentiary hearing within the constraints set forth by Matheney. We will undertake that analysis now. It is clear that the state courts did not conduct a hearing on Richardson’s prosecutorial misconduct claim, so we must consider whether Richardson alleged facts that, if proved, would entitle him to relief. He alleged that Butler would not have testified that he heard Moses say that Richardson was the man who had run out of Twin Foods. If true, that fact could prove that the prosecutor misrepresented Butler’s potentially impeaching testimony. This information is essential to Richardson’s ineffective assistance claim as well because that claim is based on his trial counsel’s failure to interview Butler. In order to consider whether Richardson was prejudiced by Lazzaro’s statement, the record needed to be expanded so that the effect of Moses’s testimony could be considered. See Hampton, 347 F.3d at 235; Matheney, 253 F.3d at 1039. Therefore, the evidentiary hearing was properly granted. B. Procedural Default When a petitioner does not adequately present a claim to the state courts, he “may obtain federal habeas relief only upon a showing of cause and prejudice for the default or upon a showing that a failure to grant him relief would work a fundamental miscarriage of justice.” Moore v. Casperson, 345 F.3d 474, 484 (7th Cir.2003). In order to show prejudice, Richardson must prove that any errors worked to his “actual and substantial disadvantage.” United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) (emphasis in original). A fundamental miscarriage of justice occurs when a petitioner can prove that “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). The district court found that" } ]

[ { "docid": "16765303", "title": "", "text": "ability to name expert witnesses in any refiled action, but rather, was forced to wait until now when he appealed the district court’s eventual judgment. III. Parker next maintains that the district court abused its discretion when it barred his use of expert testimony pursuant to Federal Rule of Civil Procedure 37(b)(2)(B). As we have stated in the past, “Kludges must be able to enforce deadlines,” In re Kilgus, 811 F.2d 1112, 1118 (7th Cir.1987) (discussing sanction of default), and Rule 37(b) sanctions provide the district court with one means for assuring that dilatory litigants timely comply with its discovery orders. Tamari v. Bache & Co. (Lebanon) S.A.L., 729 F.2d 469, 475 (7th Cir.1984). We will therefore overturn a district court’s imposition of Rule 37(b) “sanctions only where the court has abused its discretion.” Id. at 472 (citing National Hockey League v. Metro Hockey Club, 427 U.S. 639, 642, 96 S.Ct. 2778, 2780, 49 L.Ed.2d 747 (1976); Hindmon v. National-Ben Franklin Life Ins. Co., §11 F.2d 617, 620 (7th Cir.1982)). Moreover, because the district court is in the best position to determine whether a party has complied with its discovery orders, the district court’s discretion is especially broad. Tamari, 729 F.2d at 472; Loctite Corp. v. Fel-Pro, Inc., 667 F.2d 577, 582 (7th Cir.1981); Patterson v. Coca-Cola Bottling Co., 852 F.2d 280, 283 (7th Cir.1988) (trial court’s sanctions will not be set aside unless no reasonable person could agree with the trial court’s assessment of the issue under consideration) (citing 3 Penny Theater Corp. v. Plitt Theatres, Inc., 812 F.2d 337, 339 (7th Cir.1987). Reviewed under this standard, the record of the proceedings before the district court clearly demonstrates that Parker wilfully disregarded the district court’s orders. The district judge originally scheduled occurrence discovery to be completed by July 31,1986, as well as a status hearing for the same date. Counsel for Parker, however, filed no discovery requests, declined to answer a set of interrogatories filed by National Seating and failed to appear for the July status hearing. Despite later being ordered to respond to National Seating’s interrogatories by August" } ]

[ { "docid": "15006852", "title": "", "text": "to party’s claim is strong factor in Rule 403 balancing test) (collecting cases). B. Appeal from, the Denial of Post-judgment Relief We review orders disallowing post-judgment relief under rules 59 and 60(b)(3) for abuse of discretion. Perdoni Bros., Inc. v. Concrete Systems, Inc., 35 F.3d 1, 5 n. 5 (1st Cir.1995) (Rule 59); Fernandez v. Leonard, 963 F.2d 459, 468 (1st Cir.1992) (Rule 59 and Rule 60(b)(3)); United States v. Parcel of Land & Res. at 18 Oakwood Street, 958 F.2d 1, 5 (1st Cir.1992) (Rule 60(b)(3)). The district court rulings that Baker’s inaccurate responses to interrogatories neither constituted fraud nor resulted in substantial interference with the preparation and presentation of appellants’ case are reviewed for clear error. Anderson v. Beatrice Foods, Co., 900 F.2d 388, 392 (1st Cir.), cert. denied, 498 U.S. 891, 111 S.Ct. 233, 112 L.Ed.2d 193 (1990). Appellants argue that the district court abused its discretion by not affording them postjudgment relief based on Baker’s slipshod and misleading responses to interrogatories, which denied them a fair trial. Among the available forms of relief from prejudice occasioned by discovery violations are curative measures such as continuances and stays pending compliance, orders tailored to effect issue preclusion, contempt orders, and default judgments. See R.W. Int’l Corp. v. Welch Foods, Inc., 937 F.2d 11, 15-20 (1st Cir.1991) (discussing grounds for Rule 37 sanctions); Fed.R.Civ.P. 37(b)(2), (c). Appellants’ claim fails, nonetheless, as they opted to proceed rather than request relief under Rule 37, presumably because the information Baker did not disclose had become known to appellants before or during trial. Moreover, though their gambit proved unsuccessful, there was both method'—potential advantage—in their stratagem and little to lose. Since there is even now no concrete suggestion that further discovery would have benefited them, their prospects for obtaining Rule 37 relief appear all along to have been minimal compared with the potential jury impact their “cover-up” claim might reasonably have been expected to occasion. Thus, appellants’ decision to use their hole card in an abortive gambit with the jury plainly waived any claim that their decision to forego Rule 37 relief rendered" }, { "docid": "23641033", "title": "", "text": "appropriate sanetion, and we will not reverse the district court’s selection “absent a clear abuse of discretion.” Id. We review the factual findings underlying the district court’s imposition of sanctions under the deferential clearly ér-roneous standard. Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir.1992). Illinois Bell argues that, at most, it made an honest mistake when it failed to produce the BSAT-R, and therefore the district court should not have visited sanctions upon it. Illinois BeU asserts that the district court erred by ascribing bad faith motives to it. Bad faith, however, is not required for a district court to sanction a party for discovery abuses. Sanctions are proper upon a finding of wilfidness, bad faith, or fault oh the part of the noncomplying litigant. Marrocco v. General Motors Corp., 966 F.2d 220, 224 (7th Cir.1992); Patterson, 852 F.2d at 283. The district court found that Illinois Bell, through its trial counsel and Dr. Morris, knew or should have known that disclosure of the BSAT-R was required by the court’s discovery orders. We interpret this finding to mean that Illinois Bed acted in bad faith (i.e., that Illinois Bell knew disclosure was required) or, alternatively, was at fault (i.e., that Illinois Bell should have known disclo-. sure was required). After reviewing the facts, we cannot deem the district court’s finding to be clearly erroneous. The testimony at the sanctions hearing demonstrates that Illinois Bed’s trial counsel was aware of the BSAT-R project’s existence. Dr. Morris was Illinois Bell’s representative to the consortium, which was’ formed to develop a replacement for the BSAT. At the beginning of this Utigation, Dr. Morris informed Illinois Bed’s trial counsel that such a project was underway. Dr. Morris also periodieaUy updated IUinois -Bell’s counsel regarding the time frame for the completion of the BSAT-R. Moreover, the plaintiffs discovery requests clearly encompassed the BSAT-R. The BSAT-R project involved a collection of data relevant to .the validity of the original BSAT, and, almost by necessity, entailed a reexamination of the previously assembled validity evidence for the BSAT. Given the trial’s focus on the invalidity of the" }, { "docid": "23641022", "title": "", "text": "VII disparate impact claim. With respect to the merits of the disparate impact claim, defendant contends first that plaintiff failed to establish a prima facie case of disparate impact because he was unqualified for a management position. Second, defendant argues that the district court’s finding that defendant had no legitimate business reason to use the BSAT is clearly erroneous. Next, defendant asserts that the jury verdict on the § 1981 claim estopped the district court from ruling for the plaintiff on the Title VII claim. Finally, defendant maintains that the district court abused its discretion by inappropriately sanctioning Illinois Bell for its alleged discovery abuses. We address each of these arguments in turn. A. Illinois Bell argues that a single plaintiff, such as Melendez, must prove as part of his prima facie case of disparate impact that he was qualified for the position he sought. Technically, after trial, the issue of prima facie case in the specialized Title VII burden-shifting sense becomes moot. Allen v. Seidman, 881 F.2d 375, 379 (7th Cir.1989). Once the lawsuit has been tried, the relevant inquiry simplifies to whether the evidence presented at trial supports a finding of a Title VII violation. Id. In a disparate impact case, the plaintiff must prove that the challenged practice is discriminatory because it has a disparate impact unjustified by the defendant’s legitimate business needs. Id. Yet we cannot dismiss the defendant’s challenge so quickly, for this challenge raises concerns broader then the establishment of a prima facie case. In order for an individual plaintiff to have constitutional standing to bring a Title VII action, he must show that he was personally injured by the defendant’s alleged discrimination and that his injury will likely be redressed by the requested relief. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136-37, 119 L.Ed.2d 351 (1992); Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324-25, 82 L.Ed.2d 556 (1984); see also Carpenter v. Board of Regents of Univ. of Wis. Sys., 728 F.2d 911, 915 (7th Cir.1984) (holding that plaintiff in disparate impact case must" }, { "docid": "23641031", "title": "", "text": "instructions stated that the jury could infer intentional discrimination under such a set of facts. The instructions, however, properly noted that for the plaintiff to prevail, he must have proven that Illinois Bell intentionally discriminated against him through its use of the BSAT. The jury verdict-for the defendant, therefore, was necessarily based on a finding of no intentional discrimination. In contrast, a finding of BSAT validity was not necessary for the jury to reach its verdict. The jury could have believed the BSAT was invalid, yet also found that Illinois Bell had no discriminatory intent in using it. The general verdict of a jury can only bind the judge with respect to issues that were essential to the jury’s decision. See Gentry v. Duckworth, 65 F.3d 555, 560 (7th Cir.1995) (holding that party claiming issue preclusion must prove resolution of issue was essential to prior judgment). We see no reason to pluck from the verdict speculative findings not necessarily reached by the jury. The § 1981 verdict therefore did not preclude the judge from ruling for plaintiff on his Title VII disparate impact claim. C. The defendant argues that the district court abused its discretion by barring Dr. Morris from testifying under Fed.R.Civ.P. 37(b)(2)(B). As we have often stated, Rule 37(b) sanctions provide the district court with an effective means of ensuring that litigants will timely comply with discovery orders. See, e.g., Parker v. Freightliner Corp., 940 F.2d 1019, 1024 (7th Cir.1991). Both the decision to sanction and the choice of an appropriate sanction are reviewed for an abuse of discretion. Godlove v. Bamberger, Foreman, Oswald & Hahn, 903 F.2d 1145, 1148 (7th Cir.1990), cert. denied, 499 U.S. 913, 111 S.Ct. 1123, 113 L.Ed.2d 230 (1991). Because the district court is in the best position to determine if a party has complied with its discovery orders, we will not reverse the imposition of sahc-tions unless “it is clear that no reasonable person could concur in the trial court’s assessment-” Patterson v. Coca-Cola Bottling Co., 852 F.2d 280, 283 (7th Cir.1988). Similarly, the district court has primary responsibility for selecting an" }, { "docid": "1283755", "title": "", "text": "order.” He believes it means that sanctions are only appropriate where a party violates a court order because of willfulness, bad faith or fraud. “The weight of authority, however, holds that the culpability of a party who fails to comply with a court order determines only which sanctions the court should impose and not whether any sanctions are appropriate at all.” Tamari, 729 F.2d at 473 (citing Societe Internationale v. Rogers, 357 U.S. 197, 208, 78 S.Ct. 1087, 1093, 2 L.Ed.2d 1255 (1958); Marquis v. Chrysler Corp., 577 F.2d 624, 642 (9th Cir.1978)); see Fed.R.Civ.P. 37 advisory committee’s note (1970 amend.). The simple failure to comply is enough, notwithstanding a complete lack of culpability on Halas’ part. This distinction, though, is not relevant here because the district court found that Halas’ failure to attend his deposition was willful. This finding is not clearly erroneous because the record indicates that Halas was instructed to attend by the court, he received notice, and offers no excuse as to his failure to attend. Thus, the requirements of Rule 37(b) have been met. While we agree with Halas that dismissal with prejudice is a harsh sanction, it is an appropriate one in this case. It is axiomatic that the district court need not impose a lesser sanction prior to assessing the sanction of dismissal. See, e.g., Profile Gear, 937 F.2d at 354; Lockhart, 925 F.2d at 219; Patterson v. Coca-Cola Bottling Co. Cairo-Sikeston Inc., 852 F.2d 280, 284 (7th Cir.1988) (all quoting Hal Commodity Cycles Mgmt. Co. v. Kirsh, 825 F.2d 1136, 1139 (7th Cir.1987) (“A district court is not required to fire a warning shot” before assessing the sanction of dismissal.)). Here, after twenty-one months and a series of delays caused solely by Halas, he again violated the most essential and direct discovery order issued by the court: attend your deposition. The Tribune and the Ryan defendants finally deserved to be released from the obligation of defending what in all likelihood is a frivolous lawsuit. For most of the same reasons, Rule 37(d) also supports the district court’s decision. That rule avails the" }, { "docid": "8889726", "title": "", "text": "April 9 Report. It did not address the merits of Mr. Long’s objections, nor did it consider alternative sanctions. Mr. Long now appeals the dismissal of his action. II DISCUSSION We review a district court’s dismissal of an action pursuant to Federal Rule of Civil Procedure 16(f) for an abuse of discretion. See Luden v. Breweur, 9 F.3d 26, 29 (7th Cir.1993) (reviewing a dismissal of an action pursuant to Rules 16, 37 and 41 for an abuse of discretion). In determining whether the sanction of dismissal constituted an abuse of discretion, we look to the entire procedural history of the case. See Patterson v. Coca-Cola Bottling Co., 852 F.2d 280, 284 (7th Cir.1988); Schilling v. Walworth County Park & Planning Comm’n, 805 F.2d 272, 275 (7th Cir.1986). “The choice of appropriate sanctions is primarily the responsibility of the district court,” Patterson, 852 F.2d at 283; however, “the sanction selected must be one that a reasonable jurist, apprised of all the circumstances, would have chosen as proportionate to the infraction.” Salgado v. General Motors Corp., 150 F.3d 735, 740 (7th Cir.1998). We are particularly vigilant in requiring proportionality “where the draconian sanction of dismissal is imposed.” Marrocco v. General Motors Corp., 966 F.2d 220, 223-24 (7th Cir.1992). We often have noted that the interests of justice are best served by resolving cases on their merits; consequently, “[t]he sanction of dismissal with prejudice must be infrequently resorted to by district courts in attempting to control their dockets and extirpate nuisance suits.” Schilling, 805 F.2d at 275. This ultimate sanction is reserved for cases in which the offending party has demonstrated wilfulness, bad faith, or fault. See Downs v. Westphal, 78 F.3d 1252, 1256 (7th Cir.1996) (citing Patterson, 852 F.2d at 283). “Absent [these] circumstances, the careful exercise of judicial discretion requires that a district court consider less severe sanctions and explain, where not obvious, their inadequacy for promoting the interests of justice.” Schilling, 805 F.2d at 275. With these standards in mind, we turn to Mr. Long’s actions to determine if they warranted such a penalty. Mr. Long, proceeding pro se," }, { "docid": "23641032", "title": "", "text": "for plaintiff on his Title VII disparate impact claim. C. The defendant argues that the district court abused its discretion by barring Dr. Morris from testifying under Fed.R.Civ.P. 37(b)(2)(B). As we have often stated, Rule 37(b) sanctions provide the district court with an effective means of ensuring that litigants will timely comply with discovery orders. See, e.g., Parker v. Freightliner Corp., 940 F.2d 1019, 1024 (7th Cir.1991). Both the decision to sanction and the choice of an appropriate sanction are reviewed for an abuse of discretion. Godlove v. Bamberger, Foreman, Oswald & Hahn, 903 F.2d 1145, 1148 (7th Cir.1990), cert. denied, 499 U.S. 913, 111 S.Ct. 1123, 113 L.Ed.2d 230 (1991). Because the district court is in the best position to determine if a party has complied with its discovery orders, we will not reverse the imposition of sahc-tions unless “it is clear that no reasonable person could concur in the trial court’s assessment-” Patterson v. Coca-Cola Bottling Co., 852 F.2d 280, 283 (7th Cir.1988). Similarly, the district court has primary responsibility for selecting an appropriate sanetion, and we will not reverse the district court’s selection “absent a clear abuse of discretion.” Id. We review the factual findings underlying the district court’s imposition of sanctions under the deferential clearly ér-roneous standard. Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir.1992). Illinois Bell argues that, at most, it made an honest mistake when it failed to produce the BSAT-R, and therefore the district court should not have visited sanctions upon it. Illinois BeU asserts that the district court erred by ascribing bad faith motives to it. Bad faith, however, is not required for a district court to sanction a party for discovery abuses. Sanctions are proper upon a finding of wilfidness, bad faith, or fault oh the part of the noncomplying litigant. Marrocco v. General Motors Corp., 966 F.2d 220, 224 (7th Cir.1992); Patterson, 852 F.2d at 283. The district court found that Illinois Bell, through its trial counsel and Dr. Morris, knew or should have known that disclosure of the BSAT-R was required by the court’s discovery orders. We interpret" }, { "docid": "1386545", "title": "", "text": "the consequences of the conduct of a freely selected agent. Link, 370 U.S. at 633-34 n. 10, 82 S.Ct. at 1390 n. 10; Kagan, 795 F.2d at 612 (citing Pryor, 769 F.2d at 288-89). While no lesser sanctions had been previously imposed for plaintiff’s counsel’s failures to appear and comply with court deadlines, plaintiff’s counsel had received at least two warnings prior to dismissal. The imposition of lesser sanctions is not a prerequisite to dismissal. Patterson v. Coca-Cola Bottling Co., 852 F.2d 280, 284 (7th Cir.1988). In Patterson, we rejected a similar argument and explicitly refused to require trial courts to impose lesser sanctions before dismissing a case. “The choice of an appropriate ... sanction is primarily the responsibility of the district court....” Id. at 283. Likewise, in Pyramid Energy, we stated that “[a] trial court is entitled to say, under proper circumstances, that enough is enough, (citation omitted), and less severe sanctions than dismissal need not be imposed where the record of dilatory conduct is clear.” 869 F.2d at 1062. The plaintiff's final arguments that the dismissal was improper because Brennan did not show that he was prejudiced from the delay and because of the case’s young age are also meritless. A trial court’s authority to dismiss a case is not dependent on a showing of prejudice by the defen dant. Although a dismissal with prejudice serves to protect defendants, it also serves to “aid courts in keeping administrative control over their own dockets and to deter other litigants from engaging in similar dilatory behavior.” Zaddack, 773 F.2d at 150 (citations omitted). In addition, it is of little consequence that Daniels’ lawsuit was relatively younger than most cases in which we have upheld dismissal under Rule 41(b). As we stated in 3 Penny Theater Corp., “[t]here have been many cases where we have held that dismissal was not an abuse of discretion, notwithstanding the fact that the actions were relatively young.” 812 F.2d at 340 (quoting Schilling v. Walworth County Park & Planning Comm’n, 805 F.2d 272, 277 (7th Cir.1986)). Denial of Relief Under Rule 60(b) Lastly, we find" }, { "docid": "23641030", "title": "", "text": "109 S.Ct. 2115, 2118-19, 104 L.Ed.2d 733 (1989); Gilty v. Village of Oak Park, 919 F.2d 1247, 1254 (7th Cir.1990). Thus, at first glance, the § 1981 jury verdict in Illinois Bell’s favor, from which a finding of no intentional discrimination can be extracted, does not appear to dictate the result of Melendez’s Title VII disparate impact claim. In fact, we recognized as much in Daniels, where, despite a prior § 1981 jury verdict for the plaintiff, we implicitly held that it was necessary for the district court to make additional findings to support a disparate impact violation. 945 F.2d at 923. Illinois Bell attempts to avoid this caselaw by observing that, in this case, Melendez tried to prove his § 1981 claim by demonstrating the invalidity of the BSAT. In essence, Illinois Bell wishes to read the jury’s general verdict as including a special verdict finding that the BSAT is valid. Concededly, Melendez did base his theory of intentional discrimination on Illinois Bell’s knowing and continued use of an allegedly invalid test. The jury instructions stated that the jury could infer intentional discrimination under such a set of facts. The instructions, however, properly noted that for the plaintiff to prevail, he must have proven that Illinois Bell intentionally discriminated against him through its use of the BSAT. The jury verdict-for the defendant, therefore, was necessarily based on a finding of no intentional discrimination. In contrast, a finding of BSAT validity was not necessary for the jury to reach its verdict. The jury could have believed the BSAT was invalid, yet also found that Illinois Bell had no discriminatory intent in using it. The general verdict of a jury can only bind the judge with respect to issues that were essential to the jury’s decision. See Gentry v. Duckworth, 65 F.3d 555, 560 (7th Cir.1995) (holding that party claiming issue preclusion must prove resolution of issue was essential to prior judgment). We see no reason to pluck from the verdict speculative findings not necessarily reached by the jury. The § 1981 verdict therefore did not preclude the judge from ruling" }, { "docid": "1283756", "title": "", "text": "37(b) have been met. While we agree with Halas that dismissal with prejudice is a harsh sanction, it is an appropriate one in this case. It is axiomatic that the district court need not impose a lesser sanction prior to assessing the sanction of dismissal. See, e.g., Profile Gear, 937 F.2d at 354; Lockhart, 925 F.2d at 219; Patterson v. Coca-Cola Bottling Co. Cairo-Sikeston Inc., 852 F.2d 280, 284 (7th Cir.1988) (all quoting Hal Commodity Cycles Mgmt. Co. v. Kirsh, 825 F.2d 1136, 1139 (7th Cir.1987) (“A district court is not required to fire a warning shot” before assessing the sanction of dismissal.)). Here, after twenty-one months and a series of delays caused solely by Halas, he again violated the most essential and direct discovery order issued by the court: attend your deposition. The Tribune and the Ryan defendants finally deserved to be released from the obligation of defending what in all likelihood is a frivolous lawsuit. For most of the same reasons, Rule 37(d) also supports the district court’s decision. That rule avails the district court of the same sanctions set out in Rule 37(b) if a party “fails (1) to appear before the officer who is to take the deposition, after being served with a proper notice.” Because Halas’ final dilatory tactic was to ignore his scheduled deposition, Rule 37(d) applies here, and, for the same reasons, dismissal is appropriate. Finally, Halas argues that the Tribune and the Ryan defendants failed to comply with General Rule 12(K) of the Rules of the Northern District of Illinois. Rule 12(K) provides: To curtail undue delay and expense in the administration of justice, this court shall hereafter refuse to hear any and all motions for discovery and production of documents under Rules 26 through 37 of the Federal Rules of Civil Procedure, unless the motion includes a statement (1) that after personal consultation and sincere attempts to resolve differences they are unable to reach an accord, or (2) counsel’s attempts to engage in such personal consultation were unsuccessful due to no fault of counsel’s. Where the consultation occurred, this statement shall" }, { "docid": "15382578", "title": "", "text": "waive its privilege, the memo, being privileged on its face, was not subject to production in discovery. Dismissal of Powers’ Lawsuit Powers contends that the district court abused its discretion in dismissing his lawsuit against the CTA. Powers argues that the appropriate sanction for his refusal to reveal the identity of his source was to bar Powers from referring to the Hughes memorandum during the course of his lawsuit. Federal Rule of Civil Procedure 37(b)(2) authorizes a district court to impose sanctions, including dismissal, on a party who “fails to obey an order to provide or permit discovery.” An order of dismissal pursuant to Rule 37(b) is reviewable only for an abuse of discretion. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642, 96 S.Ct. 2778, 2780, 49 L.Ed.2d 747 (1976); Sere v. Board of Trustees, 852 F.2d 285, 289 (7th Cir.1988); Patterson v. Coca-Cola Bottling Co., 852 F.2d 280, 283 (7th Cir.1988). In addition, a district court's determination of the appropriate remedy for civil contempt is reviewable only for an abuse of discretion. United States v. Huebner, 752 F.2d 1235, 1244 (7th Cir.), cert. denied, 474 U.S. 817, 106 S.Ct. 62, 88 L.Ed.2d 50 (1985). The district court did not abuse its discretion in dismissing Powers' lawsuit. Throughout the proceedings, the district judge demonstrated extensive patience in exercising his discretion. At two separate hearings, the district court ordered Powers and Gubbins to identify the source of the Hughes memorandum. Both times, Powers and Gubbins refused to respond. At a hearing several months later, the district court rejected Powers’ “confidential-infor mant-in-litigation” privilege as frivolous. Nevertheless, Powers again refused to obey the court’s order to identify his source. At that point the district court gave Powers five days to think over his decision not to comply. Five days later, Powers again refused to answer. Despite the fact that the district court found that the name of Powers’ source was not privileged information, to accommodate Powers, the district court agreed to take Powers’ testimony in camera for counsel’s eyes and ears only. When the parties met in chambers, however," }, { "docid": "15006853", "title": "", "text": "of relief from prejudice occasioned by discovery violations are curative measures such as continuances and stays pending compliance, orders tailored to effect issue preclusion, contempt orders, and default judgments. See R.W. Int’l Corp. v. Welch Foods, Inc., 937 F.2d 11, 15-20 (1st Cir.1991) (discussing grounds for Rule 37 sanctions); Fed.R.Civ.P. 37(b)(2), (c). Appellants’ claim fails, nonetheless, as they opted to proceed rather than request relief under Rule 37, presumably because the information Baker did not disclose had become known to appellants before or during trial. Moreover, though their gambit proved unsuccessful, there was both method'—potential advantage—in their stratagem and little to lose. Since there is even now no concrete suggestion that further discovery would have benefited them, their prospects for obtaining Rule 37 relief appear all along to have been minimal compared with the potential jury impact their “cover-up” claim might reasonably have been expected to occasion. Thus, appellants’ decision to use their hole card in an abortive gambit with the jury plainly waived any claim that their decision to forego Rule 37 relief rendered the trial unfair. The appropriate remedy for parties who uncover discovery violations is “not to seek reversal after an unfavorable verdict but a request for continuance at the time the surprise occurs.” Szeliga v. General Motors Corp., 728 F.2d 566, 568 (1st Cir.1984); see United States v. Diaz-Villafane, 874 F.2d 43, 47 (1st Cir.) (criminal case), cert. denied, 493 U.S. 862, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989). Here, of course, there appears to have been no genuine surprise. Nor can appellants plausibly suggest that the district court abused its discretion by declining their postjudgment motion for relief from the unwelcome consequences of their calculated decision. Ojeda-Toro v. Rivera-Mendez, 853 F.2d 25, 29 (1st Cir.1988) (“[A] party may not prevail on a Rule 60(b)(3) motion ... where [it] has access to disputed information or has knowledge of inaccuracies in an opponent’s representations at the time of the alleged misconduct.”) (collecting cases). Ill CONCLUSION As the district court did not abuse its discretion in precluding the dissimilar BRT-design evidence nor in denying postjudgment relief under Rules" }, { "docid": "23641042", "title": "", "text": "expertise came from experience, education, and training; all acceptable bases of expertise under Rule 702.\" United States v. Stevenson, 6 F.3d 1262, 1267 (7th Cir.1993). The district court did not abuse its discretion in qualifying Dr. Bryant as an expert witness. . Although the rule itself is clear, the source of the rule is not completely apparent. Compare Artis, 967 F.2d at 1137 (basing rule on 7th Amendment) with Snider, 973 F.2d at 559 (grounding rule in collateral estoppel and not 7th Amendment). Our analysis here is not dependent on the rule’s origin. . Concretely, a § 1981 jury verdict for the defendant translates to a finding of no intentional discrimination, which dictates the failure of a Title VII disparate treatment claim. Analogously, a § 1981 jury verdict for the plaintiff translates to a finding of intentional discrimination, which establishes disparate treatment under Title VII. . This rule provides that if a party fails to obey an order to permit discovery, the district court may sanction the party by, among other alternatives, prohibiting the introduction of certain matters into evidence. Fed.R.Civ. P. 37(b)(2)(B). Other portions of Rule 37 grant the district court discretion to impose similar sanctions for various types of discovery abuses, including failure to produce documents and failure to supplement prior discovery responses. The defendant, quite understandably, neglects to argue that its actions are not encompassed by Rule 37. . Although this request for documents may have preceded any significant progress on the BSAT-R project, Fed.R.Civ. P. 26(e)(2) requires parties to supplement prior responses that are discovered to be incomplete due to later events. . In the context of the other arguments that Illinois Bell has presented on appeal, we find its insistence that the district court's sanction was tantamount to the entry of default judgment somewhat disingenuous. The jury returned a verdict in favor of Illinois Bell on the § 1981 claim, which dictates, in Illinois Bell’s view, a decision in its favor under Title VII. Illinois Bell has also argued that the evidence at trial (including evidence that Illinois Bell presented) cannot support the Title VII" }, { "docid": "14220861", "title": "", "text": "F.2d 1136, 1138 (7th Cir.1987) (noting that this court has repeatedly upheld the entry of default judgments for discovery violations when a party willfully chooses “ ‘not to conduct its litigation with the degree of diligence and expediency prescribed by the trial court....’” (citing C.K.S. Engineers, Inc. v. White Mountain Gypsum Co., 726 F.2d 1202,1205 (7th Cir.1984))). See also Metropolitan Life Ins. Co. v. Estate of Common, 929 F.2d 1220, 1223 (7th Cir.1991) (upheld entry of default judgment under Rule 37 where litigant provided few documents in response to discovery demands despite district court’s warning that it would enter default judgment if documents were not produced within a specified amount of time); Sere v. Bd. of Trustees, 852 F.2d 285, 290 (7th Cir.1988) (upheld dismissal against party that willfully failed to comply with, court orders); Hindmon, 677 F.2d at 620-22 (affirmed Rule 37 dismissal against plaintiff who failed to appear for deposition, failed to properly answer interrogatories, and failed to respond to request for production). Indeed, we have indicated that less severe conduct than this warrants Rule 37 dismissal. See, for example, Patterson v. Coca-Cola Bottling Co., 852 F.2d 280, 283 (7th Cir.1988) (indicating that dismissal for discovery violations might be permissible without a showing of willfulness or bad faith); Hal Commodity, 825 F.2d at 1139 (upheld entry of default judgment in the absence of interim sanctions). Plaintiffs’ conduct fits soundly within that category of conduct which warrants Rule 37 dismissal, and Judge Williams acted well within her discretion when she dismissed the plaintiffs’ claims for discovery violations. Indeed, she had no other choice. III. For the above reasons, we affirm the district court’s order to dismiss Govas’s and Yiannias’s claims with prejudice. Affirm." }, { "docid": "18614194", "title": "", "text": "639, 642-43, 96 S.Ct. 2778, 2780-81, 49 L.Ed.2d 747 (1976) (per curiam) (reversing appellate court for failing to apply abuse of discretion standard to district court’s entry of default); United States v. Di Mucci, 879 F.2d 1488, 1494 (7th Cir.1989) (applying the “clearly erroneous” standard to the district court’s factual finding that a party failed to comply with discovery requirements and affirming entry of default judgment). The District Court’s findings of intentional delay and repeated dishonesty are adequately supported. After imposing four lesser sanctions and providing clear warning that default was imminent, the District Court did not abuse its discretion in entering a default judgment. For comparison, we note that this Court has stated that a district court need not impose any lesser sanctions prior to entering the sanction of default judgment. See, e.g., Hal Commodity Cycles Management Co. v. Kirsh, 825 F.2d 1136, 1139 (7th Cir.1987) (“A district court is not required to fire a warning shot” prior to issuing a default judgment as a sanction). And even absent a finding of dishonesty, we have affirmed numerous default judgments due to dilatory tactics. See, e.g., Metropolitan Life Ins. Co. v. Estate of Cammon, 929 F.2d 1220, 1223-24 (7th Cir.1991); Anderson v. United Parcel Service, 915 F.2d 313, 314-15 (7th Cir.1990); Patterson v. Coca-Cola Bottling Co., 852 F.2d 280, 284-85 (7th Cir.1988). For these reasons, the District Court’s judgment is Affirmed." }, { "docid": "12588597", "title": "", "text": "file a brief on the work product issue. II. ANALYSIS After considering that brief outline of the procedural history and plaintiffs conduct of her own case little more should be needed to justify what a very patient trial judge, experienced on both the state and federal benches, felt compelled to do. Plaintiff left him no alternative but to dismiss her suit. Plaintiffs recalcitrance and obstruction of the case she initiated cannot be tolerated particularly from one who should know better. For this appeal plaintiff did secure counsel who well represented his client in a difficult situation. Plaintiffs counsel sets forth the basic sanction law. Whether to sanction and the sanction to be imposed are decisions entrusted to the discretion of the district court, Patterson v. Coca-Cola Bottling Co., 852 F.2d 280, 283 (7th Cir.1988) (per curiam). The “discretion given to the district court is broad,” Tamari v. Bache & Co., 729 F.2d 469, 472 (7th Cir.1984). That discretion, however, “is not unfettered.” Schilling v. Walworth County Park & Planning Comm’n, 805 F.2d 272, 275 (7th Cir.1986). The sanction must be “just” and specifically related to the particular claim at issue in the discovery order. Insurance Corp. of Ireland, Ltd., v. Compagnie des Bauxites, 456 U.S. 694, 707, 102 S.Ct. 2099, 2106, 72 L.Ed.2d 492 (1984). It must also be remembered that unexcused and willful violations justify harsh sanctions up to and including dismissal with prejudice. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643, 96 S.Ct. 2778, 2781, 49 L.Ed.2d 747 (1976) (per curiam). It is plaintiffs position against that legal backdrop, though it is conceded that she failed to comply with the court’s discovery orders, that the most severe sanction — the “draconian sanction of dismissal” — was not justified. We view the district court’s decision to impose rule 37 sanctions under an abuse of discretion standard. Magnus Elec. v. Masco Corp., 871 F.2d 626, 631 (7th Cir.1989). To support that position plaintiff raises several arguments. It is implied in plaintiff’s briefs that since her trial court actions were pro se that circumstance should be considered." }, { "docid": "8889725", "title": "", "text": "dismissal; it did not address the adequacy of lesser sanctions. Mr. Long filed his objections to the April 9 Report on April 16, 1999. Specifically, Mr. Long explained that it was his belief that the summary judgment motion was still pending and, during the pendency of the motion, all other court actions were suspended. He stated: Because Plaintiff believed that the Court’s decision on the defendants’ summary judgement motion was still pending Plaintiff neglected to comply with this Court’s Scheduling Order of January 11, 1999 inadvertenly [sic] in that he interpreted summary judgment proceedings to suspend all other proceedings pending the Court’s decision whether to grant or deny summary judgment requests, thus Plaintiff believed that submitting other matters to the court would be futile or moot.- R.84 at 1-2. Mr. Long also asked the district court to consider his diligence “in complying with all of the court’s orders through the course of the proceedings” and argued that his “inadvertent neglect ... was excusable.” Id. at 2. On April 22, 1999, the district court approved the April 9 Report. It did not address the merits of Mr. Long’s objections, nor did it consider alternative sanctions. Mr. Long now appeals the dismissal of his action. II DISCUSSION We review a district court’s dismissal of an action pursuant to Federal Rule of Civil Procedure 16(f) for an abuse of discretion. See Luden v. Breweur, 9 F.3d 26, 29 (7th Cir.1993) (reviewing a dismissal of an action pursuant to Rules 16, 37 and 41 for an abuse of discretion). In determining whether the sanction of dismissal constituted an abuse of discretion, we look to the entire procedural history of the case. See Patterson v. Coca-Cola Bottling Co., 852 F.2d 280, 284 (7th Cir.1988); Schilling v. Walworth County Park & Planning Comm’n, 805 F.2d 272, 275 (7th Cir.1986). “The choice of appropriate sanctions is primarily the responsibility of the district court,” Patterson, 852 F.2d at 283; however, “the sanction selected must be one that a reasonable jurist, apprised of all the circumstances, would have chosen as proportionate to the infraction.” Salgado v. General Motors Corp.," }, { "docid": "13909009", "title": "", "text": "event of an appeal pursuant to Fed.R.Civ.P. 72(a), the District Judge find that the undersigned’s order precluding Plaintiffs’ expert witness report was clearly erroneous or contrary to law and, accordingly, accept Plaintiffs’ expert witness report proffered in opposition to summary judgment, then disputed issues of fact based on Plaintiffs’ expert’s report preclude granting Defendants’ motion for summary judgment. Resolution of these two expert witness opinions involves a decision of material fact which must be left for the jury. 5. Plaintiffs’ Request for a Default Judgment Plaintiffs have moved for an order pursuant to Fed.R.Civ.P. 37(b) and (d), granting a judgment by default in favor of Plaintiffs and against Defendants based on Defendants’ failure to provide discovery in response to Plaintiffs’ requests, including failing to appear for scheduled depositions. Alternatively, Plaintiffs seeks an order pursuant to Fed. R.Civ.P. 37(a), (b) and (d) compelling Defendants to comply with Plaintiffs’ discovery requests, including attending depositions. Defendants have not responded to this motion. The Second Circuit has held The discovery provisions of the Federal Rules of Civil Procedure are designed to achieve disclosure of all the evidence related to the merits of a controversy. It is intended that this disclosure or evidence proceed at the initiative of the parties, free from the time-consuming and costly process of court intervention. When a party seeks to frustrate this design by disobeying discovery orders, thereby preventing disclosure of facts essential to an adjudication on the merits, severe sanctions are appropriate. Daval Steel Products v. M/V Fakredine, 951 F.2d 1357, 1365 (2d Cir.1991) (internal citations omitted). Accordingly, the district court may impose sanctions when “a party ... fails to obey an order to provide or permit discovery.” Fed.R.Civ.P. 37(b). Imposition of discovery sanctions is within the broad discretion of the court. Bobal v. Rensselaer Polytechnic Institute, 916 F.2d 759, 764 (2d Cir.1990), cert. denied, 499 U.S. 943, 111 S.Ct. 1404, 113 L.Ed.2d 459 (1991); Penthouse International, Ltd. v. Playboy Enterprises, Inc., 663 F.2d 371, 386-87 (2d Cir.1981). Although drastic sanctions such as striking the answer or entering a default judgment are available, they ordinarily are not imposed unless" }, { "docid": "9985455", "title": "", "text": "inferred from the sanction order. In re Golant, 239 F.3d at 936. Another necessity flowing from the severity of the sanction is that a court must give at least the party’s attorney notice and an opportunity to respond before entering a default judgment (or dismissing the case), but there need not be repeated warnings formalized in writing. See, e.g., Ball v. City of Chicago, 2 F.3d 752, 755 (7th Cir.1993) (“‘Due warning’ need not be repeated warnings and need not be formalized in a rule to show cause. A judge is not obliged to treat lawyers like children. But there should be an explicit warning in every case.”); Halas v. Consumer Servs., Inc., 16 F.3d 161, 164 (7th Cir.1994) (“a formal, written order to comply with discovery is not required under Rule 37(b); an oral directive from the district court provides a sufficient basis ... if it unequivocally directs the party to provide the requested discovery”). Moreover, despite the severity of the sanction, a court is not required to issue less severe sanctions before deciding to enter default judgment (or to dismiss the case). See Patterson v. Coca-Cola Bottling Co., 852 F.2d 280, 284 (7th Cir.1988)(“a district court is not required to fire a warning shot”). In arguing deficient notice, Sharif relies in part on the requirement that in a motion to compel disclosure or discovery the moving party “must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” Fed.R.Civ.P. 37(a). We are unable to see how Rule 37(a) supports Sharif’s argument. Sharif’s responses to WIN’s discovery requests were due on March 15, 2010, but Sharif ignored those requests. On April 13, WIN’s counsel conferred with Sharif s counsel and requested complete responses to discovery requests by April 23. Sharifs counsel would not agree to WIN’s request, so on April 15 WIN filed its motions to compel and for sanctions in the bankruptcy court. Accordingly, WIN satisfied its Rule 37(a) ob ligation to confer" }, { "docid": "15382577", "title": "", "text": "that analysis. Powers argues that the document is not a legal memorandum but is merely an administrative memorandum containing advice from one bureaucrat to another on how to reorganize a division of the CTA. Like the district court, we do not believe a document can be categorized as either an administrative or a legal memorandum as though those two things must somehow be mutually exclusive. Given the content of the Hughes memorandum, it fell within the ambit of the CTA’s attorney-client privilege. The third part of Powers’ proposed privilege requires that the document should have been produced in discovery. Whether the Hughes memorandum should have been produced in discovery, however, was an issue for the district court to decide. While attorney-client privileged documents are not always immune from discovery, the district court gave no would admit the Hughes memorandum if it found that the CTA had not waived its attorney-client privilege. The CTA denies that it ever waived its attorney-client privilege with respect to the Hughes memorandum. Unless Powers could show that the CTA did waive its privilege, the memo, being privileged on its face, was not subject to production in discovery. Dismissal of Powers’ Lawsuit Powers contends that the district court abused its discretion in dismissing his lawsuit against the CTA. Powers argues that the appropriate sanction for his refusal to reveal the identity of his source was to bar Powers from referring to the Hughes memorandum during the course of his lawsuit. Federal Rule of Civil Procedure 37(b)(2) authorizes a district court to impose sanctions, including dismissal, on a party who “fails to obey an order to provide or permit discovery.” An order of dismissal pursuant to Rule 37(b) is reviewable only for an abuse of discretion. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642, 96 S.Ct. 2778, 2780, 49 L.Ed.2d 747 (1976); Sere v. Board of Trustees, 852 F.2d 285, 289 (7th Cir.1988); Patterson v. Coca-Cola Bottling Co., 852 F.2d 280, 283 (7th Cir.1988). In addition, a district court's determination of the appropriate remedy for civil contempt is reviewable only for an abuse" } ]

[ { "docid": "18775707", "title": "", "text": "as to when a garnishment lien divests the debtor of ownership in his wages for the purposes of § 547. Several courts have held that the service of the garnishment order on the debtor’s employer creates a “continuing levy” which terminates any legal interest which the debtor has in his future wages. These courts have, therefore, measured the date of the transfer from the date that the garnishment was served on the debtor’s employer. Riddervold v. Saratoga Hospital, 647 F.2d 342, 344-347 (2d Cir. 1981); Moratzka v. Bill Simek Distributing, Inc., 12 B.R. 936, 937-938 (Bkrtcy.D.Minn.1981); Woodman v. L.A. Olson Co., 8 B.R. 686, 688 (Bkrtcy.W.D.Wis.1981). Other courts, however, have found that the transfer of the debtor’s property does not occur until the debtor has obtained a right in his wages. Evans v. CIT Financial Services, Inc., 16 B.R. 731 (Bkrtcy.N.D.Ga.1982); Baum v. United Virginia Bank, 15 B.R. 538, 541 (Bkrtcy.E.D.Va.1981); Cox v. General Electric Credit Corp., 10 B.R. 268, 270-272 (Bkrtcy.D.Md.1981); See also Poutre v. Emery, 13 B.R. 689, 690 (Bkrtcy.D.Vt.1981). After a careful examination of both federal bankruptcy law and the Tennessee law on garnishment, this court concludes that the latter view is correct. Section 67(a)(1) [11 U.S.C. § 107] of the former Bankruptcy Act specifically provided for the avoidance of judicial liens, including garnishment liens. Section 67(a)(1) provided in pertinent part: “Every lien against the property of a person obtained by attachment, judgment, levy, or other legal or equitable process or proceedings within four months before the filing of a petition initiating a proceeding under this Act by or against such person shall be deemed null and void .... ” A judicial lien could also be avoided by the trustee as a preferential' transfer under the provisions of § 60(a)(1) [11 U.S.C. § 96] of the Bankruptcy Act. For the purposes of determining whether a preferential judgment had occurred, the transfer of personal property was deemed completed when it had become “so far perfected that no subsequent lien upon such property obtainable by legal or equitable proceedings on a simple contract could become superior to the rights" } ]

[ { "docid": "10528919", "title": "", "text": "§§ 522(h), and 547(b), and determined that he is entitled to judgment as a matter of law. There is a split of authority among federal courts as to when a garnishment lien divests the debtor of ownership in his wages for the purpose of § 547. In re Eggleston, 19 B.R. 280, 282 (Bankr.M.D.Tenn.1982). This is partly attributable to the variance in state law governing when a transfer of the debtor’s property occurs. Matter of Coppie, 728 F.2d 951, 952 (7th Cir.1984) cert. denied, — U.S. -, 105 S.Ct. 777 83 L.Ed.2d 772 (1985). The analysis most often employed follows that used in the case of In re Cox, 10 B.R. 268 (Bankr.D.Md.1981). For the purposes of § 547, a transfer is not made until the debtor has acquired rights in the property transferred. 11 U.S.C. § 547(e)(3). A transfer pursuant to a writ of garnishment cannot occur until the debtor has earned the wages. Therefore, wage deductions during the 90-day period are preferential transfers to the judgment creditor. 6x, supra, at 271-272. Accord In re Mayo, 19 B.R. 630 (E.D.Va.l981); In re Tabita, 38 B.R. 511 (Bankr.E.D.Pa.1984); In re Eggleston, 19 B.R. 280 (Bankr.M.D.Tenn.1982); In re Evans, 16 B.R. 731, (Bankr.N.D.Ga.1982). The opposing view is that the garnishment creates a continuing lien which terminates the debtor’s property rights in his future wages. The transfer occurs on the date that the lien is created. If this is outside the 90-day period, there is no preference. Matter of Coppie, 728 F.2d 951 (7th Cir.1984) cert. denied, — U.S. -, 105 S.Ct. 777, 83 L.Ed.2d 772 (1985); In re Riddervold, 647 F.2d 342 (2d Cir.1981); See also discussion in In re Tabita, 38 B.R. at 512-513. The Seventh Circuit applied the continuing lien theory to an Indiana garnishment issued more than 90 days before the petition was filed in the Matter of Coppie, supra. The court held that the debtors no longer had a property interest in 10% of their future salaries after the Indiana court ordered that the liens on their future income be continuous. Garnishment of the debtor’s wages within" }, { "docid": "8321954", "title": "", "text": "Krumpe, 60 B.R. 575 (Bkrtcy.D.Md.1986) are not dispos-itive. In each of those cases debtors sought to recover garnished wages as preferential transfers when the garnishment had been served more than 90 days before the petition filing date, but the wages had been both earned and paid during the 90 day preference period. The court concluded in each case that the transfer did not occur when the garnishment was served on the employer, but rather it could only occur after the wages had been earned and the debtor had acquired rights in the wages. Therefore, in each case judgment was entered in favor of debtors. However, since the issue in each case was whether the date the garnishment was served or the date the wages were earned and thereafter paid was controlling, neither case addressed the issue raised here of whether the determinative date is the date wages are earned or the date they are, payable. In the Cox case the court drew a distinction between a creditor’s perfection of a lien on future wages as against other creditors by service of a writ of garnishment, and a preferential transfer of such wages which can only occur when a debtor has acquired rights in them. Cox, supra, 10 B.R. at 271-72. Therefore, while service of a writ of garnishment may satisfy the Section 547(e)(1)(B) test for a transfer by establishing priority over other creditors, it does not satisfy the Section 547(e)(3) test that a debtor must have acquired rights in the property transferred. See Md. Comm.Law Code Ann. § 15-603(b) (1990 Repl.Vol.) which requires that attachments be satisfied in the order in which they are served. Maryland law provides that the garnishment lien only attaches to wages that are payable or which become payable. Maryland Commercial Law Article, Section 15-602(a) provides: “(a) Attachment constitutes continuing lien. — When an attachment is levied against the wages of a judgment debtor, it shall constitute a lien on all attachable wages that are payable at the time the attachment is served of which become payable until the judgment, interest, and costs, as specified in" }, { "docid": "23325562", "title": "", "text": "has funds, property of the debtor, for which the debtor would have the right to sue.” Bendix Radio Corp. v. Hoy, 207 Md. 225, 229, 114 A.2d 45, 47 (1955). Accord, United States v. Williams, 279 Md. 673, 678, 370 A.2d 1134, 1137 (1977); Messall v. Suburban Trust Co., 244 Md. 502, 519, 224 A.2d 419, 428 (1966) (Barnes, J., dissenting). Under the new statute, however, the judgment creditor’s lien also attaches to property that comes into the hands of the garnishee after the writ is served. In the instant case, General Electric Credit duly filed its writ of garnishment on July 12, 1979, and lawfully satisfied its judgment from wages accruing to the debt- or thereafter. Inasmuch as § 547(b) of the Code only applies to “any transfer” that occurs within ninety days of the filing of a petition under the Bankruptcy Code, the plaintiff seeks only to avoid the garnishments attributable to wages earned on or after August 30, 1979 and not those related to wages earned prior to that date. General Electric Credit, relying in part upon Walutes v. Baltimore Rigging Co., 390 F.2d 350 (4th Cir. 1968), contends that the writ served upon the garnishee was valid and perfected against any subsequent judgment creditor proceeding on a simple contract, and thus the “transfer” of all wages garnished occurred on July 12, 1979, more than ninety days before the bankruptcy. In Walutes, the Fourth Circuit held that a payment made in satisfaction of a writ of attachment perfected outside the four-month preference period established by § 60(a)(1) of the Bankruptcy Act was not an avoidable preference if made within the four-month period. The attaching creditor in Walutes had filed a writ of attachment on original process. Under the law of Maryland, such an attachment created “an inchoate lien on [the] Bankrupt’s property, credit or funds in the hands of [the garnishee] at the time of service.” 390 F.2d at 352. Because of a new provision in the Code, it becomes unnecessary, under the facts of this case, to determine the impact of Walutes upon the avoidability of" }, { "docid": "1300305", "title": "", "text": "of the debtor’s equity of redemption.” When employing § 547(b) to recover wages withheld within the 90 day preference period, § 547(e)(3) must be considered. Significantly, this section states that “for the purposes of this section, (§ 547), a transfer is not made until the debtor has acquired rights in the property transferred.” Thus, in the proceeding before the court, the contested issue of law is whether the transfer occurred on the date of the service of the writ of garnishment or when the debtor actually earned the wages. If the date of the service of the writ of garnishment controls, wages earned up to the date of filing bankruptcy can be deemed outside the 90 day preference period if the writ of garnishment were served more than 90 days before the debtor’s filing. If the date that the wages were earned controls, all wages earned by the employee and transferred to the garnishing creditor by the employer within the 90 day preference period are recoverable as a preference, while wages earned outside the 90 day period are not recoverable. A. All Transfers Effectively Occur on the Date of Service of the Writ of Garnishment In re Coppie, 728 F.2d 951 (7th Cir.1984), cert. denied sub nom. 469 U.S. 1105, 105 S.Ct. 777, 83 L.Ed.2d 772 (1985), affirmed a bankruptcy court ruling that wages withheld within the 90 day period preceding bankruptcy, pursuant to a garnishment order entered before the preference period, did not constitute an avoidable preference. The bankruptcy judge based his decision on a determination that the Indiana garnishment statute allowed a “continuing lien” on present, as well as, future wages. The circuit court reiterated: In Indiana, the garnishee is accountable, from the date the garnishment summons is served, to the plaintiff for any money he owes to the judgment debtor. Ind.Code § 34-1-11-21 (1976). Following a hearing, a court may order, as apparently happened here, that the judgment be a continuing lien on the future income of the debtor, i.e. continuous garnishment. Ind.Code § 34-1-44-7 (1976). At the time of the garnishments at issue here, this continuing" }, { "docid": "8643162", "title": "", "text": "the claim is unsecured. The parties agree that if the trust was valid the Goffs held only equitable title. See Gurley v. Lindsley, 459 F.2d 268, 276 (5th Cir.), modified on other grounds, 466 F.2d 498 (5th Cir.1972). Citizens argues, however, that the trust was void from its inception as a self-settled spendthrift trust. The trust included a spendthrift clause that restricted alienation. In re Goff, 706 F.2d 574, 577 (5th Cir.1983). As this court has stated, Texas law provides “that if a settlor creates a trust for his own benefit and inserts a ‘spendthrift’ clause, restraining alienation or assignment, it is void as far as creditors are concerned and they can reach the set-tlor’s interest in the trust.” Id. at 587; see also Tex.Prop.Code Ann. § 112.035(d) (Vernon 1984) (effective January 1, 1984). Citizens reads Texas law as invalidating an entire trust that contains a spendthrift clause. Citizens misreads the Texas rule. The trust remains valid; only the spendthrift clause is void, allowing creditors to reach the property held in trust by garnishment. See Bank of Dallas v. Republic National Bank of Dallas, 540 S.W.2d 499, 501 (Tex.Civ.App.1976). As the court stated in Fewell v. Republic National Bank of Dallas, 513 S.W.2d 596, 598 (Tex.Civ.App.1974) (quoting Liberty Nat. Bank v. Hicks, 173 F.2d 631, 634 (D.C.Cir.1948)): Where there is a provision in the terms of the trust imposing a restraint on the transfer by a beneficiary of his interest and the provision is illegal, the provision fails, but the whole trust does not fail, since provisions like this can be separated from the other provisions without defeating the purpose of the settlor in creating the trust. See also G. Bogert & G. Bogert, The Law of Trusts and Trustees § 223, at 442-44 (rev. 2d ed. 1979). Because the trust was not void, the Goffs held only equitable title to the real property in the trust and Citizens’ lien did not attach. Citizens also argues that the trust was a “passive” trust so that legal and equitable title merged in the Goffs. As a result, Citizens contends, its lien" }, { "docid": "9966990", "title": "", "text": "sub nom., 469 U.S. 1105, 105 S.Ct. 777, 83 L.Ed.2d 772 (1985). Indiana law, like that of Illinois, provides for a continuing lien on garnished property. The court in Coppie therefore held under facts sim ilar here that the garnishment outside the 90-day period was not a preference under § 547. Coppie involved debtor’s wages not due when the garnishment summons was served. When they were later paid within the 90-day period, debtor was not entitled to the portion garnisheed. So there was no “transfer” of that part of debtor’s property at that time. The same rule certainly applies to property that, as in this case, belonged to debtor and was in its bank accounts when the garnishment (and citation) process were served. 11 U.S.C. § 547(e)(3) and Coppie, 728 F.2d at 953. Similar decisions under the laws of different states have come to the same conclusion. In re Conner, 733 F.2d 1560 (11th Cir.1984) (Georgia); In re Ryder, 59 B.R. 868 (Bankr.S.D.Fla.1985) (Florida); In re Yamamoto, 21 B.R. 58 (Bankr.D.Haw.1982) (Hawaii); In re TMIC Indus. Cleaning, 19 B.R. 397 (Bankr.W.D.Mo.1982) (Missouri); and In re Woodman, 8 B.R. 686 (Bankr.W.D.Wis.1981) (Wisconsin). Contra In re Larson, 21 B.R. 264, 271 (Bankr.D.Utah 1982) (Utah). So the second check paid to Pacesetter paid over moneys earlier subject to the garnishment lien as well as the citation lien. That check was merely a transfer of Pacesetter’s money to it when paid, not a transfer of Debtor’s property. CONCLUSION Once the citation and garnishment liens attached under Illinois law, a “transfer” occurred within the meaning of § 547, transferring Debtor’s property interest in its accounts and discovered moneys to Pacesetter. That occurred prior to and outside the 90-day period. When Pacesetter actually received payments of those accounts and moneys during the 90-day period, it was merely receiving its own money, not a transfer from Debtor’s property. Trustee therefore has failed to establish one of the elements required under § 547, and his suit must fail. By separate order, summary judgment will be allowed to Defendant, not to Plaintiff, and final judgment will enter in favor" }, { "docid": "5709605", "title": "", "text": "garnishment law, however, the bankruptcy court focused on the transfer which occurred when the writ of garnishment was served on August 21, 1996, a date more than ninety days prior to the bankruptcy filing. Because the bankruptcy court read Missouri’s garnishment law to provide the garnishor with a continuing lien on all wages earned from the date of service of the writ of garnishment until the return date on the writ or the service of the garnishee’s answer, the bankruptcy court held that the fifth element of a preference had not been met. According to the bankruptcy court, the payments made by the garnishee to the court and by the court to Midwest did not result in Midwest’s improving its position because Midwest was a creditor holding a lien which attached as to all three payments outside the preference period. This was, in the court’s view, as a result of the service of the garnishment summons outside the ninety day preference period. In reaching this conclusion, the bankruptcy court correctly noted that ordinarily payments made to a lien creditor fully perfected prior to the start of the preference period do not improve the creditor’s position and are not preferential even if such payments occur within the preference period. Curiously, the bankruptcy court made reference to Bankruptcy Code § 547(e)(3), but stated that it had “no evidence or stipulation from which to determine whether Debtor’s wages were earned inside or outside the preference period.” In a later order denying Wade’s motion for amended findings, the bankruptcy court rejected Wade’s request that the bankruptcy court make factual findings or allow additional evidence regarding when the wages were earned, stating, “[a]l-though the stipulation of facts submitted by the parties did not expressly address this issue, it is a determination which can easily be made by reasonable persons.” IV. Missouri Law The bankruptcy court correctly interpreted Missouri garnishment law. Missouri’s garnishment statutes, like garnishment statutes in many states, provide that service of the notice of garnishment shall have the effect of attaching all personal property, money, rights, credits, bonds, bills, notes, drafts, checks or" }, { "docid": "5709612", "title": "", "text": "them. It applies to every kind of transfer, including involuntary transfers of the debtor’s property. Suppose, for example, that C wins a judgment against D and gets a continuing garnishmentykgainst D’s employer. The garnishment first takes effect when the writ of garnishment is served on the employer. At that time a lien on D’s wages attaches in favor of the garnishing creditor. Suppose, also, that the garnishment is a continuing garnishment, that is, the lien affects wages thereafter earned by D until the garnishment expires by law or by the terms of the writ. The garnishment may continue until the creditor’s judgment is satisfied. Service of the writ occurred, and thus the garnishment lien initially arose, outside of the preference period. The lien is nevertheless preferential to the extent that the lien spreads to the sums that D earns during the preference period. The reason is that D does not acquire rights to her wages until she earns them. Thus, be- caus'e of the section 547(e)(3) caveat, any transfer of her wages, including a transfer to a creditor by way of a continuing garnishment, cannot occur until the wages are earned or later, notwithstanding that the continuing lien of garnishment that automatically attaches to the wages as soon as she earns them predates the preference period. 1 David G. Epstein et al„ Bankruptcy § 6-15, at 553-55 (1992) (footnotes omitted). The authors acknowledge case authority to the contrary but view such cases as “analytically flawed” because they base their analysis on a view that a continuing garnishment may be analogized to a voluntary assignment of a right arising in the future under an executo-ry contract; i.e., viewing a continuing garnishment “as effecting an existing, albeit contingent, right to unearned wages:” First, the argument presupposes that this common-law theory regarding the assignment of rights under executory contract applies to garnishment, and further assumes that the thing is not displaced; in bankruptcy preference eases, by section 547(e)(3). Second, even if applicable, the theory must be applied consistently with the section 547(e)(3) caveat. The language of the section equates the time of transfer" }, { "docid": "8643161", "title": "", "text": "title in the property and that a judgment lien does not attach to equitable title. The trustee maintained that Citizens should be allowed only an unsecured claim. The bankruptcy court sustained the trustee’s objection, and the district court affirmed. Citizens appeals. II. Under Texas law, a judgment that has been properly recorded and indexed operates as a lien on the real estate of the defendant located in the county in which the record and index are made. Tex.Stat. Ann. art. 5449 (Vernon 1958), repealed and replaced by Tex.Prop.Code Ann. § 52.001 (Vernon 1984). The judgment lien attaches only to real property in which the judgment debtor has legal title; it does not attach to property in which the debtor has only equitable title. Watson v. Scales, 244 S.W.2d 366, 368 (Tex.Civ.App.1951); Adams v. Impey, 131 S.W.2d 288, 290 (Tex.Civ.App.1939). If the Goffs held legal title to the real property in the trust Citizens’ lien attached and Citizens’ claim is a secured claim. If the Goffs held only equitable title Citizens’ lien did not attach and the claim is unsecured. The parties agree that if the trust was valid the Goffs held only equitable title. See Gurley v. Lindsley, 459 F.2d 268, 276 (5th Cir.), modified on other grounds, 466 F.2d 498 (5th Cir.1972). Citizens argues, however, that the trust was void from its inception as a self-settled spendthrift trust. The trust included a spendthrift clause that restricted alienation. In re Goff, 706 F.2d 574, 577 (5th Cir.1983). As this court has stated, Texas law provides “that if a settlor creates a trust for his own benefit and inserts a ‘spendthrift’ clause, restraining alienation or assignment, it is void as far as creditors are concerned and they can reach the set-tlor’s interest in the trust.” Id. at 587; see also Tex.Prop.Code Ann. § 112.035(d) (Vernon 1984) (effective January 1, 1984). Citizens reads Texas law as invalidating an entire trust that contains a spendthrift clause. Citizens misreads the Texas rule. The trust remains valid; only the spendthrift clause is void, allowing creditors to reach the property held in trust by garnishment. See" }, { "docid": "10179340", "title": "", "text": "a split of authority as to when a garnishment lien divests a debtor of ownership of his wages. Judge Goldhaber, Bankruptcy Judge for the Eastern District of Pennsylvania, surveyed the case law on this issue in In re Tabita, 38 B.R. 511 (Bankr.E.D.Pa.1984). In re Mayo, 19 B.R. 630, 632-33, (E.D.Va.1981), which is cited in Tabita, holds that a debtor does not acquire an interest in his wages until he earns them and that the transfer occurs on the date the wages are earned. Based upon the line of cases of which Mayo is a part, Judge Goldhaber holds in Tabita that until the employee has performed the services he has not acquired rights in his wages and a transfer has not occurred for purposes of 11 U.S.C. § 547(b). Tabita at 515. Judge Mannes reaches a similar result in Maryland in Krumpe. The Virginia statutes pertaining to garnishment parallel the statutes of Pennsylvania and Maryland and the impact of 11 U.S.C. § 547(e)(3) is the same. The cases which hold to the contrary are discussed and distinguished in both Tabita and Krumpe. This Court is of the opinion that the Tabita and Krumpe decisions are consistent with the holdings in Lamm and Mayo and should be followed in the case at bar. Thus, notwithstanding the fact that the lien resulting in notice of garnishment is obtained outside the preference period, any wages earned by the debtor within the preference period which are subject to the lien of a fieri facias are avoidable by the trustee under 11 U.S.C. § 547(b). In this case, the Trustee has declined to pursue the preference thus giving rise to rights of the Debtor to pursue the preference under 11 U.S.C. § 522(h). Mayo, supra, p. 633. However, the Debtor has offered no evidence to show what wages, if any, the Debtor earned during the ninety (90) days prior to the filing of the bankruptcy petition. December 12, 1986, is the date of the beginning of the 90-day period in this case. Therefore, this Court holds that any wages of the Debtor which were" }, { "docid": "7708297", "title": "", "text": "was permitted to avoid $271.07 of $466.50 in garnished funds. The debtor had earned the $271.07 during the ninety days before filing and, consequently, the “transfer” in Evans was dissimilar to that in Askin Marine. The Evans court held that § 547(e)(3) is the statutory authority for determining that the time of transfer with regard to wages was at the point the employee earned those wages. Evans at 733. The Eleventh Circuit implicitly accepted the distinction between Askin Marine and Evans in discussing the applicable law: “[u]nder section 547 the transfer generally is made when the transfer is ‘perfected’ 11 U.S.C. § 547(e)(2)(A)-(B).” (emphasis supplied). Id. at 1562. While the general rule of § 547(e)(2)(A)-(B) was applicable to the circumstances in Askin Marine, it is the exception under § 547(e)(3) which was applicable to Evans and governs both the instant proceedings. Section 547(e)(3) states “[f]or the purposes of this section a transfer is not made until the debtor has acquired rights in the property transferred.” An employee does not acquire rights to his wages until he has earned them. Consequently, even though generally the service of summons of garnishment is the critical point for dating a transfer as Askin Marine clearly holds, the critical point for dating a transfer where the debtor has not acquired rights to the property is the date those rights are acquired. See Tabita v. Internal Revenue Service (In re Tabita), 38 B.R. 511, 12 B.C.D. 41 (BC ED PA, 1984). Therefore, in the three adversary proceedings before the Court, the wages that the debtors had earned during the preference period may be avoided even if the summons of garnishment predated the ninety day preference period. The Chapter 7 trustee in Ellenberg v. GMAC may avoid the $450.00 garnished by GMAC as a preferential transfer. The debtor in Baker v. GMAC has not specified the dates the garnished wages were earned. To the extent that the garnishment consisted of wages earned for work done during the ninety day preference period, in this case from December 17, 1982, the debtor is entitled to recover such amount. The" }, { "docid": "23325563", "title": "", "text": "Credit, relying in part upon Walutes v. Baltimore Rigging Co., 390 F.2d 350 (4th Cir. 1968), contends that the writ served upon the garnishee was valid and perfected against any subsequent judgment creditor proceeding on a simple contract, and thus the “transfer” of all wages garnished occurred on July 12, 1979, more than ninety days before the bankruptcy. In Walutes, the Fourth Circuit held that a payment made in satisfaction of a writ of attachment perfected outside the four-month preference period established by § 60(a)(1) of the Bankruptcy Act was not an avoidable preference if made within the four-month period. The attaching creditor in Walutes had filed a writ of attachment on original process. Under the law of Maryland, such an attachment created “an inchoate lien on [the] Bankrupt’s property, credit or funds in the hands of [the garnishee] at the time of service.” 390 F.2d at 352. Because of a new provision in the Code, it becomes unnecessary, under the facts of this case, to determine the impact of Walutes upon the avoidability of garnishment payments made within the preference period under a continuing attachment procedure such as the new statute adopted in Maryland. Section 547(e)(3) of the Code provides that “a transfer is not made until the debt- or has acquired rights in the property transferred.” 11 U.S.C. § 547(e)(3) (Supp. Ill 1979) (emphasis added). This limitation is a significant departure from the law as to preferences under the Act. 4 Collier on Bankruptcy ¶ 547.45, at 547-135 (15th ed. 1980). Section 547(e)(3) is similar to the Uniform Commercial Code provision that a security interest cannot attach until “the debtor has rights in the collateral.” Md. Com.Law Code Ann. § 9-204(1) (1975). Cf. Md.Com.Law Code Ann. § 9-203(l)(e) (Supp.1980) (effective January 1, 1981). Moreover, § 547(e)(3) was intended by Congress to overrule expressly cases such as Grain Merchants of Indiana, Inc. v. Union Bank & Savings Co., 408 F.2d 209 (7th Cir.), cert. denied, 396 U.S. 827, 90 S.Ct. 75, 24 L.Ed.2d 78 (1969). H.R.Rep.No.95-595, 95th Cong., 1st Sess. 374-75 (1977), U.S. Code Cong. & Admin.News 1978, p." }, { "docid": "18765291", "title": "", "text": "a creditor on a simple contract cannot acquire a judicial lien that is superior to the rights of the judgment creditor ... Nonetheless, the avoidance powers under § 547(b) extend to the avoidance of transfers rather than perfection of liens. Inasmuch as § 547(e)(3) establishes that a transfer does not occur until the debtor has rights in the collateral, the transfer of wages garnished pursuant to a writ of garnishment cannot occur until the judgment debtor has earned the wages garnished. Thus, a payment on the garnishment attributable to wages earned by the debtor within ninety days of the filing of a bankruptcy petition is a preferential transfer to a judgment creditor. Cox v. General Electric Credit Corp., 10 B.R. at 271-272 (emphasis added). The court in Tabita v. Internal Revenue Service, 38 B.R. 511, 515 (Bankr.E.D.Pa.1984) further emphasized that: [C]ontrary to the reasoning expressed by the Second Circuit in Riddervold, we find that section 547(e)(3) of the Code \"requires” us to hold that the portion of the debtor’s salary subject to the wage attachment vests in the debtor-employee when he has performed the services for which he is entitled to be paid. Until that time, the debtor has not \"acquired rights” in his wages. Consequently, since, as a matter of federal bankruptcy law, the debtor acquired rights in his wages when he earned them,- those wages collected ... within the preference period are avoidable under section 547(b) of the Code. . The key provision of the definition of property of the estate in 11 U.S.C. § 541 is that the estate includes \"all legal or equitable interests of the debtor in property as of the commencement of the case.” 1TU.S.C. § 541(a)(1). The operative language of § 547(b) at issue in this case states that the preference recovery power is triggered upon a finding of a transfer of \"an interest of the debtor in property.” 11 U.S.C. § 547(b). It is not obvious that Congress intended the phrase \"interest of the debtor in property\" in § 547(b) to be any more or any less extensive than the phrase “all" }, { "docid": "5709611", "title": "", "text": "note secured by the car, but Fidelity failed to perfect its security interest within the twenty-day time limit of § 547(c)(3)(B). Missouri law deemed-perfection of a security interest to have occurred on the date of delivery, if all the necessary papers were recorded within thirty days of delivery. The Supreme Court held that perfection must occur within 20 days as set forth in § 547(c)(3)(B), regardless of Missouri law on the subject. Fidelity resolved a long-standing split in the courts on the question of whether state law deemed perfection could trump the federal statutory definition found in § 547(c)(3)(B). See — U.S. at - n. 2, 118 S.Ct. at 653 n. 2. The Court held, importantly, that state perfection law yields to federal preference law where the two are in conflict. See id. at -, 118 S.Ct. at 656. The analysis is strengthened by reference to a leading commentary which addresses ■this precise question: Although the section 547(e)(3) caveat is aimed primarily at UCC Article 9 floating liens, application of-the caveat is not limited to them. It applies to every kind of transfer, including involuntary transfers of the debtor’s property. Suppose, for example, that C wins a judgment against D and gets a continuing garnishmentykgainst D’s employer. The garnishment first takes effect when the writ of garnishment is served on the employer. At that time a lien on D’s wages attaches in favor of the garnishing creditor. Suppose, also, that the garnishment is a continuing garnishment, that is, the lien affects wages thereafter earned by D until the garnishment expires by law or by the terms of the writ. The garnishment may continue until the creditor’s judgment is satisfied. Service of the writ occurred, and thus the garnishment lien initially arose, outside of the preference period. The lien is nevertheless preferential to the extent that the lien spreads to the sums that D earns during the preference period. The reason is that D does not acquire rights to her wages until she earns them. Thus, be- caus'e of the section 547(e)(3) caveat, any transfer of her wages, including a transfer" }, { "docid": "11670673", "title": "", "text": "the execution lien on them may be avoided as a preference: A writ of garnishment may well be a duly perfected lien on wages yet to be earned such that a creditor on a simple contract cannot acquire a judicial lien that is superi- or to the rights of the judgment creditor. Nonetheless, the avoidance powers under § 547(h) extend to the avoidance of transfers rather than the perfection of liens. Inasmuch as § 547(e)(3) establishes that a transfer does not occur until the debtor has rights in the collateral, the transfer of wages garnished pursuant to a writ of garnishment cannot occur until the judgment debtor has earned the wages garnished. Thus, a payment of the garnishment attributable to wages earned by the debtor within ninety days of the filing of a bankruptcy petition is a preferential transfer to a judgment creditor. Mayo v. United Services Automobile Association (In re Mayo), 19 B.R. 630, 632-633 (E.D.Va.1981) (MacKenzie, J.), quoting In re Cox, 10 B.R. 268 (Bankr.D.Md.1981) (emphasis added). The wages garnished in Mayo and Cox were earned by the debtor within 90 days of filing the bankruptcy petition. In the present ease, however, it is undisputed that the wages withheld under the garnishment and paid over to Dale were earned entirely outside the 90-day preference period. Accordingly, the transfer which occurred when the execution lien attached cannot be avoided as a preference. This does not end the inquiry, however, for the employer’s payment to Dale of the wages that had been withheld also plainly constitutes a “transfer” within the meaning of § 547, Bankruptcy Code. Since that transfer — whether it is deemed to have occurred on October 11, 1995, when the state court entered the order of payment, or on October 23, 1995, when the employer actually paid the withheld wages to Dale — occurred within 90 days prior to the debtor’s bankruptcy, it is potentially avoidable as a preference. Here, however, the improvement-of-position test of § 547(b)(5), Bankruptcy Code, comes into play. Generally, “a preference is a transfer * * * that enables a creditor to receive" }, { "docid": "10218735", "title": "", "text": "and interests in the same wages as they are earned.” Perry, 48 B.R. at 597. The answer to that questions depends on state law. If it makes sense at all, the ‘continuing levy’ concept offered in Riddervold [v. Saratoga Hospital, 647 F.2d 342 (2nd Cir.1981) ] and applied in Coppie [to the Indiana continuing lien] operates only in a state which would recognize execution of the original writ of garnishment as accomplishing the complete end to the debtor’s legal and equitable rights in future wages. Perry, 48 B.R. at 596. According to Bryant, Johnson, and Nealis, Illinois is not such a state. Similarly, with respect to the citation to discover assets, it is clear that no transfer of all the Debtor’s interest in the bank account could have occurred without a court order. A citation itself does no more than freeze the asset in the hand of the cited party “until the further order of the court or the termination of the proceeding, whichever occurs first.” Ill.Rev.Stat. ch. 110, § 2-1402(d)(l). A citation expires and any discovered assets become unfrozen and freely transferable to the debtor unless an order is entered within six months. See Fowler, 90 B.R. at 379 (citation lien terminates unless judgment creditor acts within six months). Since the mere passage of time can terminate the citation, and the creditor has no rights in the assets except the right to obtain an order, it is obvious that the debtor does not lose all interest in the property before an order is entered. But the creditors here point out that the court in Waner reached a different conclusion in the context of a preference proceeding. In Waner, the debtor’s bank was served with a citation to discover assets and garnishment summons more than ninety days before bankruptcy. The bank paid the balance of the account to the judgment creditor within the ninety day preference period. The trustee sued to avoid that payment as a preference under section 547 of the Bankruptcy Code. Waner held that service of the citation to discover assets and service of the garnishment summons" }, { "docid": "17927842", "title": "", "text": "it served a writ of garnishment on those accounts in November 1987, within one year of Westex’s filing for bankruptcy. In bankruptcy, the existence and power of a garnishment lien is controlled by state law. Phillips v. MBank, Waco, N.A. (In re Latham), 823 F.2d 108, 110 (5th Cir.1987). Texas courts have stated that the garnishor is to be treated as if he stood in the shoes of the garnishment debtor. Beggs v. Fite, 130 Tex. 46, 106 S.W.2d 1039, 1042 (1937); RepublicBank Dallas v. National Bank of Daingerfield, 705 S.W.2d 310, 311 (Tex.Ct.App.1986). “That is, the garnishor ... may enforce whatever rights the debtor could have enforced had such debtor been suing the garnishee directly.” RepublicBank Dallas, 705 S.W.2d at 311. In order for Bond to enforce his claim against Westex, he would be required to obtain a judgment and then execute against Westex’s assets by serving a writ of garnishment on Westex’s bank accounts. Only by taking these steps could Bond perfect an interest in those accounts. Alaska therefore cannot be deemed to have perfected an interest in the accounts merely by serving a writ of garnishment on Wes-tex. Alaska, like Bond, must first obtain a judgment against Westex and effect execution (or other process) before it can perfect an interest in the accounts. Otherwise, Alaska as garnishor would be placed in a better position than Bond. Alaska served the writ of garnishment on Wes-tex’s banks on November 13, 1987, thereby effecting a transfer under section 547(b) within one year of Westex’s filing for bankruptcy. Alaska contends that it perfected an interest in Westex’s bank accounts through the January 6, 1987 service of the writ of garnishment on Westex. Alaska relies on the rule in Texas that “the service of a writ of garnishment creates a lien on property subject to such writ of garnishment from the date of the service of the writ.” United States v. Standard Brass & Mfg., 266 S.W.2d 407, 408 (Tex.Civ.App.1954); see Phillips, 823 F.2d at 110. Alternatively, Alaska adopts the bankruptcy court’s conclusion that the earlier garnishment perfected Alaska’s interest in Westex’s" }, { "docid": "17927841", "title": "", "text": "Westex to Alaska if it occurred during the insider preference period, between ninety days and one year before the date on which Westex filed for bankruptcy. If the relevant transfer occurred on January 6, 1987, as Alaska claims, the transfer is not avoidable, for Westex filed for bankruptcy on March 11, 1988, more than one year later. The Bankruptcy Code provides that “a transfer is made — (A) at the time such transfer takes effect between the transfer- or and the transferee, if such transfer is perfected at, or within 10 days after, such time; (B) at the time such transfer is perfected, if such transfer is perfected after such 10 days_” 11 U.S.C. § 547(e)(2). The Code also states that “a transfer of a fixture or property other than real property is perfected when a creditor on a simple contract cannot acquire a judicial lien that is superior to the interest of the transferee.” 11 U.S.C. § 547(e)(1)(B). We find that Alaska perfected its interest in Wes-tex’s referenced bank accounts when, but not before, it served a writ of garnishment on those accounts in November 1987, within one year of Westex’s filing for bankruptcy. In bankruptcy, the existence and power of a garnishment lien is controlled by state law. Phillips v. MBank, Waco, N.A. (In re Latham), 823 F.2d 108, 110 (5th Cir.1987). Texas courts have stated that the garnishor is to be treated as if he stood in the shoes of the garnishment debtor. Beggs v. Fite, 130 Tex. 46, 106 S.W.2d 1039, 1042 (1937); RepublicBank Dallas v. National Bank of Daingerfield, 705 S.W.2d 310, 311 (Tex.Ct.App.1986). “That is, the garnishor ... may enforce whatever rights the debtor could have enforced had such debtor been suing the garnishee directly.” RepublicBank Dallas, 705 S.W.2d at 311. In order for Bond to enforce his claim against Westex, he would be required to obtain a judgment and then execute against Westex’s assets by serving a writ of garnishment on Westex’s bank accounts. Only by taking these steps could Bond perfect an interest in those accounts. Alaska therefore cannot be deemed to" }, { "docid": "11670672", "title": "", "text": "or irrevocable. It need only be superior to the rights of a subsequent judgment lien creditor, and in Virginia the lien by writ of fieri facias is such a lien.” In the Matter of Acorn Electric Supply, Inc., 348 F.Supp. 277, 281 (E.D.Va.1972), citing Charron & Co. v. Boswell, 18 Gratt. (59 Va.) 216 (1868). Consequently, in Virginia “the execution lien on intangibles is perfected for bankruptcy when the writ of fieri facias is delivered to the officer to be executed.” Acorn Electric, 348 F.Supp. at 282. However, an execution lien (like any other lien) cannot effect a transfer “until the debtor has acquired rights in the property transferred.” § 547(e)(3), Bankruptcy Code. In the case of wages, this means that, although the employer may have been served with a garnishment summons, the execution lien does not attach — and thus a transfer does not occur — until the wages are actually earned. Thus, if wages withheld under garnishment process are earned within 90 days of the filing of the debtor’s petition, the fixing of the execution lien on them may be avoided as a preference: A writ of garnishment may well be a duly perfected lien on wages yet to be earned such that a creditor on a simple contract cannot acquire a judicial lien that is superi- or to the rights of the judgment creditor. Nonetheless, the avoidance powers under § 547(h) extend to the avoidance of transfers rather than the perfection of liens. Inasmuch as § 547(e)(3) establishes that a transfer does not occur until the debtor has rights in the collateral, the transfer of wages garnished pursuant to a writ of garnishment cannot occur until the judgment debtor has earned the wages garnished. Thus, a payment of the garnishment attributable to wages earned by the debtor within ninety days of the filing of a bankruptcy petition is a preferential transfer to a judgment creditor. Mayo v. United Services Automobile Association (In re Mayo), 19 B.R. 630, 632-633 (E.D.Va.1981) (MacKenzie, J.), quoting In re Cox, 10 B.R. 268 (Bankr.D.Md.1981) (emphasis added). The wages garnished in Mayo and" }, { "docid": "10218736", "title": "", "text": "any discovered assets become unfrozen and freely transferable to the debtor unless an order is entered within six months. See Fowler, 90 B.R. at 379 (citation lien terminates unless judgment creditor acts within six months). Since the mere passage of time can terminate the citation, and the creditor has no rights in the assets except the right to obtain an order, it is obvious that the debtor does not lose all interest in the property before an order is entered. But the creditors here point out that the court in Waner reached a different conclusion in the context of a preference proceeding. In Waner, the debtor’s bank was served with a citation to discover assets and garnishment summons more than ninety days before bankruptcy. The bank paid the balance of the account to the judgment creditor within the ninety day preference period. The trustee sued to avoid that payment as a preference under section 547 of the Bankruptcy Code. Waner held that service of the citation to discover assets and service of the garnishment summons had each created a lien and thereby transferred all of the debtor’s interest in the bank account to the creditor even before the garnishment judgment order was entered. That is, in the Waner court’s view it was the attachment of the citation and garnishment liens that immediately divested the debtor of all interest in the property and transferred that entire interest to the creditor at that time, so that, “when [the creditor] actually received payments of those accounts and moneys during the 90-day period it was merely receiving its own money, not a transfer from Debtor’s property.” 89 B.R. at 756. This court cannot agree with the holding of the Waner court. Indeed, to this Court’s ear, the notion that the attachment of a lien transfers all of the debtor’s interest in the liened property sounds like an oxymoron. A lien is a “charge against or interest in property to secure payment of a debt or performance of an obligation.” 11 U.S.C. § 101(33). That is, a lien is a right to have property applied" } ]

[ { "docid": "2720016", "title": "", "text": "it may come.”); Williams v. New York, 337 U.S. 241, 246, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949) (explaining that courts have traditionally “exercise[d] a wide discretion in the sources and types of evidence used to assist [them] in determining the kind and extent of punishment to be imposed within limits fixed by law”); see also Nichols v. United States, 511 U.S. 738, 747, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994) (noting that “the sentencing process ... [is] less exacting than the process of establishing guilt”). That is because it is '“[h]ighly relevant — if not essential' — to [the] selection of an appropriate sentence” for the sentencing court to “possess [ ] ... the fullest information possible concerning the defendant’s life and characteristics.” Williams, 337 U.S. at 247, 69 S.Ct. 1079. This broad discretion has been preserved under the sentencing guidelines. In resolving any dispute concerning a factor pertinent to the sentencing decision, “the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.” U.S.S.G. § 6A1.3(a), p.s. And, in selecting a particular sentence within the guideline range (or deciding whether to depart from that range), a district court “may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law.” Id. § 1B1.4; see 18 U.S.C.A. § 3661 (West 2000) (“No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.”). Nevertheless, we have recognized that “[t]here are ... constitutional limitations” on the generally broad scope of information a court may consider at sentencing. United States v. Lee, 540 F.2d 1205, 1210 (4th Cir.1976). In particular, we have construed various Supreme Court decisions as “recognizing] a due process right to be sentenced only on information which is accurate.” Id. at 1211. For example, in Tucker, the Supreme Court held" } ]

[ { "docid": "22827415", "title": "", "text": "of trial testimony. Appellant’s first argument is that the sentencing judge erred by considering testimony from a separate trial at appellant’s sentencing hearing. We find no constitutional, statutory, or procedural rule, however, that would bar the sentencing judge’s consideration of relevant and reliable information of the type used in this case. Plainly, the Federal Rules of Evidence do not apply at sentencing. Fed.R. Evid. 1101(d)(3). Moreover, courts have traditionally been allowed to consider all sources of information in formulating an appropriate sentence: “[N]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” 18 U.S.C. § 3661. Prior to the enactment of the Sentencing Guidelines, the circuit courts had uniformly held that reliable hearsay evidence could be considered in the sentencing determination. See e.g., United States v. Shepherd, 739 F.2d 510, 515 (10th Cir.1984) (The sentencing judge may properly consider uncorroborated hearsay evidence that the defendant has had an opportunity to rebut or explain.); United States v. York, 830 F.2d 885, 893 (8th Cir.1987), cert. denied, 484 U.S. 1074, 108 S.Ct. 1047, 98 L.Ed.2d 1010 (1988); United States v. Cusenza, 749 F.2d 473, 478 (7th Cir.1984); United States v. Lee, 818 F.2d 1052, 1055 (2nd Cir.1987), cert. denied, 484 U.S. 956, 108 S.Ct. 350, 98 L.Ed.2d 376. We find nothing in the Guidelines to suggest that a different rule now applies. Section 6A1.3 of the Guidelines provides: (a) When any factor important to the sentencing determination is reasonably in dispute, the parties shall be given an adequate opportunity to present information to the court regarding that factor. In resolving any reasonable dispute con cerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy. The Commentary to this section adds: In determining the relevant facts, sentencing judges are not restricted to" }, { "docid": "23282279", "title": "", "text": "defendant’s innocence.”). Traditionally, a sentencing judge exercised broad discretion in considering all relevant information in determining an appropriate sentence, including evidence of uncharged crimes, dropped counts of a criminal indictment and criminal activity resulting in acquittal. Furthermore, consideration of this evidence was not thought to offend due process, provided a defendant was given an opportunity to contest the accuracy of that information. See, e.g., United States v. Romano, 825 F.2d 725, 728 (2d Cir.1987). Under the Guidelines [i]n resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider relevant information ... provided that the information has sufficient indicia of reliability to support its probable accuracy. U.S.S.G. § 6A1.3(a). Recent decisions of this court indicate that adoption of the Guidelines has not changed the principle that disputed sentencing factors need only be proved by a preponderance of the evidence to satisfy due process. United States v. Rivalta, 892 F.2d 223, 230 (2d Cir.1989); United States v. Guerra, 888 F.2d 247, 251 (2d Cir.1989). On the record before us, the district court could properly have found by a preponderance of the evidence that Rodriguez-Gonzalez possessed a firearm during the commission of a narcotics offense. For example, Rodriguez-Gonzalez was present in the apartment at the time that the drug deals took place, and he was apprehended going from the kitchen toward the living room, where the loaded gun was found. B. Vargas-Santanas Vargas-Santanas raises two challenges to his sentence. First, he asserts that the district court improperly enhanced his base offense level by adding two levels for possession of a firearm under § 2D1.1(b)(1), conduct for which he, unlike his co-defendant Rodriguez-Gonzalez, was not indicted. Vargas-Santanas challenges the enhancement on the ground that the district court’s finding that he possessed a firearm was clearly erroneous. Although Vargas-Santanas admits that the agents found a loaded gun on top of a stereo, he nevertheless contends that the gun was improperly attributed to him. In support, Vargas-Santanas claims, among other things, that there was no indication that he ever possessed or used the gun or that it was present during" }, { "docid": "11648504", "title": "", "text": "Lee, 818 F.2d at 1057. We can discern no significant difference between disputes about pre-Guideline sentencing factors under McMillan and those concerning “relevant conduct” pursuant to the Guidelines. Consistent with the McMillan analysis, several of the Courts of Appeals have, to date, rejected arguments that due process requires the use of the reasonable doubt standard at sentencing hearings under the Sentencing Guidelines. See, e.g., United States v. Ehret, 885 F.2d 441 (8th Cir.1989) (rejecting the reasonable doubt standard, and leaving the question of the preponderance standard to future cases); United States v. Harris, 882 F.2d 902, 906 (4th Cir.1989) (upholding the preponderance of the evidence standard); United States v. Wright, 873 F.2d 437, 441-42 (1st Cir.1989) (rejecting the reasonable doubt standard, and citing with approval the McMillan preponderance standard). Cf. Amendments of the Sentencing Guidelines for the United States Courts, 54 Fed.Reg. 21348, 21349-350 (May 17, 1989) (WESTLAW, FR database) (proposing the reasonable doubt standard for a special category of conspiracy cases involving multiple object offenses where the jury’s verdict does not specify for which offense(s) defendant was convicted, except in the case of offenses that are grouped together under § 3D1.2(d) because § 1B1.3(a)(2) governs consideration of the defendant’s conduct). The Sentencing Guidelines neither explicitly mention a standard of proof required for relevant conduct, nor indicate any reason why we must now change the due process calculus simply because the Congress has decided to provide federal sentencing courts with additional guidance. If, as in this case, a sentencing factor is under dispute, Section 6A1.3(a) of the Guidelines provides: [T]he parties shall be given an adequate opportunity to present information to the court regarding that factor. In resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy. Guidelines Manual. It follows that upon conviction a defendant must be afforded some opportunity both to contest factors that might enhance the sentence, and to offer evidence in" }, { "docid": "22042069", "title": "", "text": "as long as the defendant is afforded an opportunity to explain or rebut the evidence.” York, 830 F.2d at 893. The Guidelines themselves recognize this principle: When any factor important to the sentencing determination is reasonably in dispute, the parties shall be given an adequate opportunity to present information to the court regarding that factor. In resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient in-dicia of reliability to support its probable accuracy. U.S.S.G. § 6A1.3(a), p.s. (emphasis added). The commentary to this section explains further: In determining the relevant facts, sentencing judges are not restricted to information that would be admissible at trial. 18 U.S.C. § 3661. Any information may be considered, so long as it has “sufficient indicia of reliability to support its probable accuracy.” Reliable hearsay evidence may be considered. Out-of-court declarations by an unidentified informant may be considered “where there is good cause for the nondisclosure of his identity and there is sufficient corroboration by other means.” Unreliable allegations shall not be considered. U.S.S.G. § 6A1.3, comment, (other citations omitted); see also United States v. Granados, 962 F.2d 767, 771-72 (8th Cir. 1992) (sentencing court may consider hearsay if reliable). We hold that the Guidelines’ standard for the consideration of hearsay testimony at sentencing meets the appropriate constitutional test and fulfills the Confrontation Clause’s basic purpose of promoting the integrity of the factfinding process. See White v. Illinois, — U.S.-,-, 112 S.Ct. 736, 743, 116 L.Ed.2d 848 (1992). Before considering whether the hearsay testimony introduced at Wise’s sentencing hearing satisfies this standard, we offer a few observations concerning the sentencing court’s role in evaluating information presented in support of an enhanced sentence. As we emphasized in Galloway, “[a]l-though the Guidelines certainly channel the court’s discretion in sentencing, they also underscore the significant responsibility that remains with the district judge.” 976 F.2d at 427. We went on to point out that it is for the district court to resolve" }, { "docid": "17984612", "title": "", "text": "yet resurrect his right to a jury at sentencing by interposing a constitutional challenge to the Guidelines. A waiver of the Sixth Amendment right to jury is just that, a waiver of jury. A court cannot, and must not, act so as to exert pressure on a defendant to waive his right to a jury. But a court certainly can require that a defendant accept the full and natural consequences of such a waiver, including judicial factfinding at sentencing. If a defendant determines not to accept such consequences, as is his right, the matter should be scheduled for trial in order to fully vindicate the defendant’s Sixth Amendment rights. This Court believes that the constitutional viability of the Guidelines depends on the continued viability of the current system of waiver and consent. The jurisprudence supporting this system was not challenged in any way by Blakely. Accordingly, waiver and consent should remain the cornerstone of the criminal justice system in the future. B. Burden of Proof and Rules of Evidence The Guidelines provide that the burden of proof for establishing a sentencing factor is a preponderance of the evidence. U.S. Sentencing Guidelines Manual § 6A1.3 cmt. (2002). The commentary to § 6A1.3 states, “The Commission believes that the use of a preponderance of the evidence standard is appropriate to meet due process requirements and policy concerns in resolving disputes regarding application of the guidelines to the facts in the case.” Id. The Guidelines further provide that the rules of evidence do not apply to the determination of whether facts support a sentencing enhancement: When any factor important to the sentencing determination is reasonably in dispute, the parties shall be given an adequate opportunity to present information to the court regarding that factor. In resolving any dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy. U.S. Sentencing Guidelines Manual § 6A1.3(a) (2002). The United States asserts that these principles" }, { "docid": "8378466", "title": "", "text": "court’s finding was clear error, because the court based its determination on unreliable evidence and failed to properly inquire into the reliability of the evidence or make explicit fact findings supporting its conclusion. We review a district court’s determination of role in the offense for clear error, and will reverse only if after reviewing all of the evidence, we are left with the definite and firm conviction that a mistake has been made. United States v. Hankton, 432 F.3d 779, 789 (7th Cir.2005). Moreover, a district court in determining a sentence is not bound by the same stringent evidentiary standards as are applicable in a criminal trial. United States v. Taylor, 72 F.3d 533, 543 (7th Cir.1995). Hearsay, for instance, may be considered at sentencing even if it would not have been admissible at trial, and has been characterized as an integral part of the sentencing process. Hankton, 432 F.3d at 790; United States v. Badger, 983 F.2d 1443, 1459 (7th Cir.1993). A court at sentencing “ ‘may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come.’ ” Id., quoting United States v. Harty, 930 F.2d 1257, 1268 (7th Cir.1991). The caveat is that the defendant has a due process right to be sentenced on the basis of rehable information. Taylor, 72 F.3d at 543. Accordingly, under the Guidelines the court must limit consideration to information that has “ ‘sufficient indicia of reliability to support its probable accuracy.’” United States v. Roche, 415 F.3d 614, 618 (7th Cir.2005); U.S.S.G. § 6A1.3(a). Johnson asserts that the district court erred in relying on the Presentence Investigation Report (PSR) in finding that the enhancement was appropriate. He maintains that he had raised sufficient concerns about the reliability of the information in the PSR but that the district court failed to then make a searching inquiry into the reliability of the information as is'required. In objecting to the PSR in the district court, Johnson first contended that the statements by Marshall and Enoch were unreliable because" }, { "docid": "22760853", "title": "", "text": "testimony credible and denied the objection. We review the district court’s application of the sentencing guidelines de novo and its findings of fact for clear error. United States v. Grant, 397 F.3d 1330, 1332 (11th Cir.2005). The district court did not err in sentencing Harper under §§ 2Dl.l(d)(l) and 2A1.1 based on Han-kins’ testimony, regardless of whether it was hearsay. A sentencing court may consider any information, (including hearsay), regardless of its admissibility at trial, in determining whether factors exist that would enhance a defendant’s sentence, provided that the evidence has sufficient indicia of reliability, the court makes explicit findings of fact as to credibility, and the defendant has an opportunity to rebut the evidence. United States v. Zlatogur, 271 F.3d 1025, 1031 (11th Cir. 2001); see also Williams v. Oklahoma, 358 U.S. 576, 584, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959) (“[0]nce the guilt of the accused has been properly established, the sentencing judge, in determining the kind and extent of punishment to be imposed, is not restricted to evidence derived from the examination and cross-examination of witnesses in open court.”); Williams v. New York, 337 U.S. 241, 246-51, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949) (“[Mjodern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial.”). The sentencing guidelines make the same point. U.S.S.G. § 6A1.3(a) (2004) (“In resolving any dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.”). The district court thus did not err in applying § 2A1.1 to Harper’s conduct based on Hankins’ testimony, nor did it clearly err in determining that Harper in fact drove the getaway car. There is no indication that Hankins’ statement lacked sufficient indicia of reliability to support its probable accuracy. Next, Harper argues that the district court" }, { "docid": "23379236", "title": "", "text": "States v. Sciarrino, 884 F.2d 95, 98 (3d Cir.), cert. denied, 493 U.S. 997, 110 S.Ct. 553, 107 L.Ed.2d 549 (1989); United States v. Inigo, 925 F.2d 641, 660 (3d Cir.1991). The sentencing court can give a high level of credence to hearsay statements, going so far as to “credit hearsay evidence over sworn testimony, especially where there is other evidence to corroborate the inconsistent hearsay statement.” Miele, 989 F.2d at 664 (3d Cir. 1993). However, in order to avoid “misinformation of constitutional magnitude,” Sciarrino, 884 F.2d at 97, we require that “information used as a basis for sentencing under the Guidelines ... have ‘sufficient indicia of reliability to support its probable accuracy.’” Miele, 989 F.2d at 663; see also United States v. Torres, 926 F.2d 321, 324 (3d Cir. 1991) (noting necessity that information upon which Guidelines sentences are based be reliable). The Sentencing Guidelines themselves provide: In resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy. U.S.S.G. § 6A1.3(a) (1995). The commentary to § 6A1.3 further provides: In determining the relevant facts, sentencing judges are not restricted to information that would be admissible at trial. 18 U.S.C. § 3661. Any information may be considered, so long as it has “sufficient indicia of reliability to support its probable accuracy.” Reliable hearsay evidence may be considered. Out-of-court declarations by an unidentified informant may be considered “where there is good cause for the nondisclosure of his identity and there is sufficient corroboration by other means.” U.S.S.G. § 6A1.3(a), Commentary. We have held that “this standard [“sufficient indicia of reliability”] should be applied rigorously.” Miele, 989 F.2d at 664. In Miele, we vacated the sentence imposed on the defendant because the statements used to support the factual findings for sentencing were found to fall short of the “sufficient indicia of reliability” standard. The statement at issue, involving the quantities of drugs transacted by the defendant, was" }, { "docid": "23078069", "title": "", "text": "it therefore sentenced Defendant to a below-Guidelines term of 336 months imprisonment, to be followed by five years of supervised release. On September 30, 2005, Defendant filed a timely notice of appeal. DISCUSSION I. Laurel’s Proffer Statement Contained Sufficient Indicia of Reliability to be Admissible Defendant’s first argument on appeal is that Laurel’s proffer statement was inadmissible at sentencing because it was hearsay that did not possess sufficient in-dicia of reliability. We review the district court’s determination of reliability for abuse of discretion, United States v. Bowker, 372 F.3d 365, 392 (6th Cir.2004), vacated on other grounds, 543 U.S. 1182, 125 S.Ct. 1420, 161 L.Ed.2d 181 (2005); United States v. Luciano, 414 F.3d 174, 180 (1st Cir.2005), and we review the district court’s factual findings for clear error. See United States v. Herrera, 928 F.2d 769, 774 (6th Cir.1991). The Due Process Clause of the Fifth Amendment also imposes a minimum standard of reliability for evidence admitted at sentencing. See United States v. Silverman, 976 F.2d 1502, 1504 (6th Cir.1992) (en banc) (citing United States v. Baylin, 696 F.2d 1030, 1040 (3d Cir.1982)). To the extent that Defendant’s claims sound in due process, we review them de novo. See United States v. Sanders, 452 F.3d 572, 576 (6th Cir.2006) (“A due process claim raising a mixed question of law and fact is reviewed de novo.”), cert. denied, - U.S. -, 127 S.Ct. 2130, 167 L.Ed.2d 867 (2007). Generally, the Federal Rules of Evidence do not apply to sentencing proceedings, Fed.R.Evid. 1101(d)(3), and hearsay evidence is admissible at sentencing. United States v. Davis, 170 F.3d 617, 622 (6th Cir.1999). However, U.S.S.G. § 6A1.3(a) does establish a minimum indi-cia-of-reliability standard that evidence must meet in order to be admissible in Guidelines sentencing proceedings. Section 6A1.3(a) states: When any factor important to the sentencing determination is reasonably in dispute, the parties shall be given an adequate opportunity to present information to the court regarding that factor. In resolving any dispute concern ing a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules" }, { "docid": "23122029", "title": "", "text": "§ 2D1.4, comment, (n. 2). Before sentencing, the defendant may challenge the accuracy of the factual allegations in the PSR. See Fed.R.Crim.P. 32(c)(3)(D); see also U.S.S.G. § 6A1.3(b), p.s. (“The court shall resolve disputed sentencing factors in accordance with [Fed. R.Crim.P.] 32(a)(1) ..., notify the parties of its tentative findings and provide a reasonable opportunity for the submission of oral or written objections before imposition of sentence.”). When a defendant alleges any factual inaccuracy in the PSR: the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Bureau of Prisons. Fed.R.Crim.P. 32(c)(3)(D). If, in response to a sufficiently specific objection by the defendant, the court elects to make a finding on the disputed factual issue, “the government must introduce evidence sufficient to convince the Court by a preponderance of the evidence that the fact in question exists.” Streeter, 907 F.2d at 792. Support for this principle resides in the Guidelines as well, which provide: When any factor important to the sentencing determination is reasonably in dispute, the parties shall be given an adequate opportunity to present information to the court regarding that factor. In resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy. U.S.S.G. § 6A1.3(a), p.s. (emphasis added). The sentencing judge may conduct an evidentiary hearing on the quantity of drugs at issue; but such a hearing is discretionary, not mandatory. United States v. Upshaw, 918 F.2d 789, 791 (9th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1335, 113 L.Ed.2d 266 (1991). As the commentary to U.S.S.G. § 6A1.3 cautions, however: Although lengthy sentencing hearings should seldom be" }, { "docid": "17335842", "title": "", "text": "106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). Although we have recognized that due process may require sentencing courts to apply a higher standard of proof in situations where the sentencing enhancement becomes the “tail which wags the dog of the substantive offense,” United States v. Townley, 929 F.2d 365, 369 (8th Cir.1991) (quoting McMillan, 477 U.S. at 88, 106 S.Ct. 2411), this case presents no such question, and we decline to address it now. By applying the “beyond a reasonable doubt” standard at sentencing, the district court afforded Okai more protection than due process requires. While this decision does not itself constitute error, see e.g., United States v. Murphy, 899 F.2d 714, 717 (8th Cir.1990), the issue before us today concerns whether this standard of proof nevertheless runs afoul of the sentencing procedure prescribed by the United States Supreme Court, and our court, after Booker. We review de novo the district court’s interpretation and application of the advisory Guidelines. United States v. Blazek, 431 F.3d 1104, 1109 (8th Cir.2005). Under U.S.S.G. § 6A1.3(a), the relevant conduct supporting a sentencing enhancement may be found by the sentencing court so long as there is “sufficient indicia of reliability to support its probable accuracy.” The commentary to U.S.S.G. § 6A1.3 further provides the Sentencing Commission’s view that “use of a preponderance of the evidence standard is appropriate to meet due process requirements and policy concerns in resolving disputes regarding application of the guidelines to the facts of a case.” United States Sentencing Guidelines § 6A1.3 therefore plainly authorizes courts to apply all sentencing enhancements that are proven by a preponderance of the evidence. The United States Supreme Court’s decision last year in Booker, and our decisions interpreting and applying it, make clear that a proper advisory Guidelines calculation remains a critical starting point in determining a criminal defendant’s individualized sentence. Booker, 543 U.S. at 264, 125 S.Ct. 738; Mashek, 406 F.3d at 1016 n. 4. However, by requiring sentencing facts to be proven beyond a reasonable doubt, the sentencing court deprives itself of the full benefit of the presumptively reasonable advice that is" }, { "docid": "4397795", "title": "", "text": "he was sentenced to five to fifteen years and two to six years (concurrent) in January of 1973.” A report prepared by the Federal Bureau of Investigation’s Identification Division also listed Brown’s 1970 conviction as “Att. Rob.III.” That document was also before the court at sentencing. It was not disputed that the crime of Attempted Robbery 3rd is a crime punishable under §§ 70, 110.05, 160.05 of the New York Penal Law by imprisonment up to four years and is a “violent felony” as defined in U.S.S.G. § 4B1.4 and 18 U.S.C. § 924(e)(2)(B). The facts underlying the 1970 conviction as recounted in the presen-tence report were not disputed by Brown, namely, that a woman was knocked down and robbed and that he was initially charged with the more serious offense of Robbery-2nd. The issue posed by the defendant by clear implication, if not explicitly, is the propriety of the district court’s reliance upon the pre-sentence report of the New York City Department of Probation and the information supplied by the Identification Division of the F.B.I. in concluding that Brown was an armed career criminal. In this regard, it is important to note that Rule 1101(d)(3), Fed. R.Ev. provides that the rules of evidence do not apply to sentencing proceedings. 18 U.S.C. § 3661 provides that “[n]o limitation shall be placed on the information concerning the background, character and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” And finally, U.S.S.G. § 6A1.3 provides in relevant part that “[i]n resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.” Brown correctly asserts that the government bears the burden of establishing (by a preponderance of the evidence), the existence of prior violent felony convictions when seeking a sentence enhancement pursuant to U.S.C. § 924(e). It is clear that" }, { "docid": "4397796", "title": "", "text": "F.B.I. in concluding that Brown was an armed career criminal. In this regard, it is important to note that Rule 1101(d)(3), Fed. R.Ev. provides that the rules of evidence do not apply to sentencing proceedings. 18 U.S.C. § 3661 provides that “[n]o limitation shall be placed on the information concerning the background, character and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” And finally, U.S.S.G. § 6A1.3 provides in relevant part that “[i]n resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.” Brown correctly asserts that the government bears the burden of establishing (by a preponderance of the evidence), the existence of prior violent felony convictions when seeking a sentence enhancement pursuant to U.S.C. § 924(e). It is clear that the government may discharge that burden by any relevant evidence having sufficient indicia of reliability. The 1982 presentence report prepared by a New York probation officer based upon prior New York convictions for use by a New York court in imposing sentence upon Brown may similarly be used by a federal court in Vermont with justifiable confidence in its reliability. The fact that a certified copy of Brown’s 1970 conviction may have been more desirable, does not detract from the reliability of the information before the court or from its justifiable reliance upon that information. United States v. Paleo, 967 F.2d 7, 13 (1st Cir.1992) (“The federal sentencing court will normally accept as valid a properly evidenced past conviction. Unless it reveals uneonstitutionality on its face, a certified copy of a court record of conviction or a presentence report’s account of a past conviction will normally prove the fact of a valid conviction”) (emphasis added). In a subsequent opinion reported in 9 F.3d 988 (1992) the court withdrew its prior opinion for reasons which did" }, { "docid": "21508959", "title": "", "text": "166 L.Ed.2d 539 (2006) (internal citations omitted). The district court must correctly interpret and apply the Guidelines when calculating the appropriate advisory guideline range. United States v. Crawford, 407 F.3d 1174, 1178-79 (11th Cir.2005). In calculating a defendant’s criminal history category, one point is added for each prior sentence under 60 days. See U.S.S.G. § 4Al.l(c). “The term ‘prior sentence’ means any sentence previously imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo conten-dere, for conduct not part of the instant offense.” U.S.S.G. § 4A1.2(a)(l). The Commentary notes that a diversionary disposition is counted only where there is a finding or admission of guilt in a judicial proceeding. U.S.S.G. § 4A1.1, comment. (n.3). “[W]hen a defendant challenges a factual basis of his sentence, the government has the burden of establishing the disputed fact by a preponderance of the evidence.” United States v. Ndiaye, 434 F.3d 1270, 1300 (11th Cir.), cert. denied, — U.S. -, 127 S.Ct. 128, 166 L.Ed.2d 95 (2006) (citation omitted). “The district court’s factual findings for purposes of sentencing may be based on, among other things, evidence heard during trial, undisputed statements in the PSI, or evidence presented during the sentencing hearing.” Id/, see also U.S.S.G. § 6A1.3(a) (“In resolving any dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy”). We have held that a certified copy of a conviction is not necessary to support a finding of a conviction. United States v. Wilson, 183 F.3d 1291, 1301 (11th Cir. 1999) (noting that, “[wjhile the best approach would always be to produce a certified copy of the conviction, we find the sources the district court relied upon-a PSI, the on-the-record statements of a probation officer, and the notes of another probation officer-when taken together, were sufficiently reliable to support the court’s finding that Herndon had been convicted of the weapons charge in question”); see also United States v. Acosta," }, { "docid": "23369838", "title": "", "text": "convicted, with the sentences to run concurrently. II. Appellants’ first argument is that in calculating their sentences the District Court erred by considering uncharged drug transactions proved at the sentencing hearing by only a preponderance of the evidence. Appellants assert that raising their base offense level under the Sentencing Guidelines based on facts found by a preponderance of the evidence violates due process. We disagree. The Guidelines themselves do not prescribe a particular standard of proof. They do, however, advise that [i]n resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indi-cia of reliability to support its probable accuracy. Federal Sentencing Guidelines § 6A1.3(a), at 6.2 (emphasis added). The Commentary to this section recognizes that because the “court’s resolution of disputed sentencing factors will usually have a measurable effect on the applicable punishment,” appropriate procedures are required to ensure that “the sentencing process is ... accurate and fair.” Id. commentary at 6.2. The Commentary instructs courts to hold evidentiary hearings, if necessary, to “ensure that the parties have an adequate opportunity to present relevant information.” Id. Nothing in the Guidelines suggests that the Commission intended to require trial judges to articulate any particular standard of proof when finding facts in sentencing proceedings. Prior to the adoption of the Sentencing Guidelines it was clearly established that the government need not prove the facts relied on in sentencing “beyond a reasonable doubt.” See, e.g., United States v. Ehret, 885 F.2d 441, 444 (8th Cir. Sept. 13, 1989); United States v. Restrepo, 832 F.2d 146, 149-50 (11th Cir.1987) (pre-Guidelines) (rejecting preponderance standard; government need only produce “some reliable proof”); United States v. Lee, 818 F.2d 1052, 1057 (2d Cir.) (pre-Guidelines) (adopting preponderance standard), cert. denied, 484 U.S. 956, 108 S.Ct. 350, 98 L.Ed.2d 376 (1987). The Supreme Court has held that the use of the preponderance of the evidence standard in sentencing proceedings does not violate due process. McMillan v. Pennsylvania, 477 U.S. 79, 91," }, { "docid": "11495196", "title": "", "text": "here, a defendant concocts a story that excuses his illegal conduct, a court may find no acceptance of responsibility. Even if the excuse is not a legal justification sufficient to negate criminal liability, it still might demonstrate the defendant’s unwillingness to admit his culpability. In this case, the district court’s decision to deny Greene’s request for a reduction for acceptance of responsibility was not clearly erroneous. B. RELIABILITY OF INFORMATION USED AT SENTENCING AND FAILURE TO MAKE FACTUAL FINDINGS Next, Greene argues that the district court erroneously relied on information that failed to meet the minimum indicia of reliability required by § 6A1.3(a) of the United States Sentencing Commission Guidelines, which provides: WTien any factor important to the sentencing determination is reasonably in dispute, the parties shall be given an adequate opportunity to present information to the court regarding that factor. In resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy. U.S.S.G. § 6A1.3(a). Since United States v. Silverman, 976 F.2d 1502, 1511 (6th Cir.1992) (en banc), cert. denied, 507 U.S. 990, 113 S.Ct. 1595, 123 L.Ed.2d 159 (1993), this court has set a relatively low hurdle. Before the district court may factor information into the sentencing calculus, it must bear some “minimum indicia of reliability.” The district court’s factual findings must be made based on a preponderance of the evidence standard. United States v. Herrera, 928 F.2d 769, 774 (6th Cir.1991). The district court’s findings may be reviewed on appeal solely for clear error. United States v. Ivery, 999 F.2d 1043, 1045 (6th Cir.1993); United States v. Carroll, 893 F.2d 1502, 1506 (6th Cir.1990). Greene argues that the district court relied on insufficient and unreliable information in support of the enhancements. However, the district court held a hearing, heard testimony from the probation officer and from the defendant himself, and used information in the presentence report to make its factual determinations. The district" }, { "docid": "22760854", "title": "", "text": "and cross-examination of witnesses in open court.”); Williams v. New York, 337 U.S. 241, 246-51, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949) (“[Mjodern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial.”). The sentencing guidelines make the same point. U.S.S.G. § 6A1.3(a) (2004) (“In resolving any dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.”). The district court thus did not err in applying § 2A1.1 to Harper’s conduct based on Hankins’ testimony, nor did it clearly err in determining that Harper in fact drove the getaway car. There is no indication that Hankins’ statement lacked sufficient indicia of reliability to support its probable accuracy. Next, Harper argues that the district court erred when it found him responsible for cocaine base in excess of 50 grams because (1) the evidence before the court was insufficient to make such a finding; and (2) that determination should have been made by a jury, consistent with Apprendi v. New Jersey, 580 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and thus by extension, Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Booker. We need not reach either argument because any error would necessarily be harmless. The district court properly sentenced Harper under U.S.S.G. §§ 2Dl.l(d)(l) and 2A1.1, which mandates a life sentence regardless of the quantity of drugs involved. See United States v. Padro Burgos, 239 F.3d 72, 76-77 (1st Cir.2001). 2. Williams Williams makes the same three challenges to his life sentence raised by Harper. As in Harper’s case, Williams was sentenced to life in prison pursuant to U.S.S.G. §§ 2D1.1(d)(1) and 2A1.1, and as in Harper’s case," }, { "docid": "23388161", "title": "", "text": "knew who entered the information regarding the 1971 arrest into the NCIC database. The probation officer responded that he did not. The district court then entered the NCIC report into the record. Given the Government’s explanations as to its accuracy, the court concluded that it was “appropriate to rely on” the report because “[t]here is a lot that substantiates” it. Accordingly, the court once again designated McDowell an armed career criminal. The court then sentenced him to 196 months’ imprisonment — a somewhat shorter sentence than the initial sentence due to McDowell’s good behavior in the interim. II. The ACCA mandates a term of fifteen years to life imprisonment for felons convicted of unlawfully possessing a firearm after committing three “violent felonies]” or “serious drug offense[s].” 18 U.S.C. § 924(e). The Government bears the burden of proving by a preponderance of the evidence that a defendant committed a predicate violent felony — the same standard that applies to any other sentencing factor. United States v. Harcum, 587 F.3d 219, 222 (4th Cir.2009). We review a district court’s legal conclusions at sentencing de novo and its factual findings for clear error. United States v. Farrior, 535 F.3d 210, 217 (4th Cir.2008). When a defendant objects to information in a PSR, the district court must “rule on the dispute” before imposing a sentence. Fed.R.Crim.P. 32(i)(3)(B). In resolving a dispute regarding the PSR, the court may consider information that “has sufficient indicia of reliability to support its probable accuracy.” U.S.S.G. § 6A1.3(a). The party objecting to information in a PSR has an “affirmative duty” to show that the information is incorrect. United States v. Terry, 916 F.2d 157, 162 (4th Cir.1990); see also United States v. Randall, 171 F.3d 195, 210-11 (4th Cir.1999). On appeal, we afford considerable deference to a district court’s determinations regarding the reliability of information in a PSR. We will not disturb a court’s determination regarding the reliability of a PSR unless we are “left with the definite and firm conviction that a mistake has been committed.” United States v. Harvey, 532 F.3d 326, 336 (4th Cir.2008) (quotation marks" }, { "docid": "8988158", "title": "", "text": "of imminent serious bodily injury. Menacing is a ... class 5 felony if committed: ... By the use of a deadly weapon or any article used or fashioned in a manner to cause a person to reasonably believe that the article is a deadly weapon. . The Government originally contended we should review Defendant’s challenge to the sufficiency of the evidence supporting the § 2K2.1(b)(6) enhancement for plain error only, but conceded at oral argument that this issue was adequately presented to the district court, and that clear error is the appropriate standard of review. . “OG” is most likely shorthand for “Original Gangster,” a phrase coined by the artist Ice-T. See Ice-T, O.G. Original Gangster (Sire Records 1991). . See also United States v. Gatewood, 370 F.3d 1055, 1061 (10th Cir.2004) (holding that in sentencing \"hearsay may be considered as long as it bears some minimal indicia of reliability”) vacated on other grounds by Gatewood v. United States, 543 U.S. 1109, 125 S.Ct. 1013, 160 L.Ed.2d 1036 (2005); United States v. Knox, 124 F.3d 1360, 1366 (10th Cir.1997) (holding \"evidence legitimately considered at sentencing ... may include hearsay testimony containing only minimal indicia of reliability”); see generally U.S.S.G. § 6A1.3(a) (2007) (\"In resolving any dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.”). . We reject Defendant's argument that the Colorado felony menacing statute required Mr. Spruell to be placed in actual fear as an element of the offense — a detail that was apparently not revealed until Officer Cruser's telephone conversation with Mr. Spruell. See People v. Dist. Ct. of Colo. Seventeenth Judicial Dist., 926 P.2d 567, 571 (Colo.1996) (“To establish that a defendant has committed the crime of menacing, it is not necessary to prove actual subjective fear on the part of the victim. Rather, it is only necessary that the defendant be aware that his conduct is practically certain to cause fear.’’) (citations" }, { "docid": "21100147", "title": "", "text": "inferences from the evidence cannot be clearly erroneous.” United States v. Wyatt, 102 F.3d 241, 246 (7th Cir.1996). Rather, a factual determination is clearly erroneous “only, if after considering all the evidence, the reviewing court is left with the definite and firm conviction that a mistake has been committed.” United States v. Messino, 55 F.3d 1241, 1247 (7th Cir.1995) (internal quotations omitted). Pursuant to the now-advisory United States Sentencing Guidelines, see United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), U.S.S.G. § 2K2.1(b)(l)(A) provides for a two level increase in the defendant’s base offense level if an offense involved three or more firearms. The commentary to U.S.S.G. § 2K2.1(b)(l)(A) provides that the district court should “count only those firearms that were unlawfully sought to be obtained, unlawfully possessed, or unlawfully distributed.” U.S.S.G. § 2K2.1, cmt., n. 2. It is the government’s burden to prove by a preponderance of the evidence the number of firearms involved in an offense, and the sentencing court may consider relevant evidence regardless of whether such evidence is admissible under the Federal Rules of Evidence “so long as the information ... has a sufficient indicia of reliability to support its probable accuracy.” United States v. Edwards, 115 F.3d 1322, 1326-27 (7th Cir.1997). The district court found that the offense and relevant conduct involved at least four firearms: (1) the Kessler Arms 16-gauge shotgun, for which Birk was convicted; (2) a .410 shotgun that Birk sold to Payne through Anderson, which was charged in Count Two of the indictment but later dismissed; and (3) the two handguns that Birk discussed with Nancy Williams and intended to sell to Payne at some later date, but did not possess at the time of his arrest. We need only address the two handguns Birk promised to obtain for Payne in exchange for facilitating the sale of the shotgun. If they are properly included in the calculation, then the magic number three is reached and the enhancement was appropriate; if they cannot be counted, then a remand for resentencing would be warranted. The Guideline commentary states" } ]

[ { "docid": "9626448", "title": "", "text": "“cannot demand general judicial review” of day-to-day operations. Lujan v. National Wildlife Federation, 497 U.S. 871, 899, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990); see also id. at 894, 110 S.Ct. 3177 (“[e]xcept where Congress explicitly provides for our correction of the administrative process at a higher level of generality, we intervene in the administration of the laws only when, and to the extent that, a ‘final agency action’ has an actual or immediate threatened effect”). Because the Center fails to identify any “concrete action ... that harms or threatens to harm” it, id. at 891, 110 S.Ct. 3177, its characterization of the Forest Service’s action as final is misplaced. B. Failure to Act The Center contends that even if the Forest Service’s failure to comply with its monitoring duty is not considered to be a final agency action under 5 U.S.C. § 704, its claims are still ripe for judicial review pursuant to § 706(1). Section 706(1) permits the court to review claims to compel “agency action unlawfully withheld or unreasonably delayed.” The Center alleges that because the Forest Service has continuously failed to meet its monitoring duty required under the Plan, it has in effect unlawfully withheld or unreasonably delayed performing a mandatory responsibility. Thus, it asserts, judicial review of its complaint should be available under this failure to act exception. Courts have permitted jurisdiction under the limited exception to the finality doctrine only when there has been a genuine failure to act. This court has refused to allow plaintiffs to evade the finality requirement with complaints about the sufficiency of an agency action “dressed up as an agency’s failure to act.” Nevada v. Watkins, 939 F.2d 710, 714 n. 11 (9th Cir.1991) (denying jurisdiction on basis that agency had failed to act when there were merely deficiencies in energy guidelines rather than actual failure by Secretary to act). In this case, the Center has not pleaded a genuine § 706(1) claim. The record demonstrates that the Forest Service performed extensive monitoring and provided detailed reports recounting its observations. The Forest Service merely failed to conduct its duty" } ]

[ { "docid": "19702229", "title": "", "text": "that an EIS is not required, it must, as the BLM did here, issue a FONSI detailing why the action “will not have a significant effect on the human environment.” 40 C.F.R. § 1508.13. As is customary, the FONSI in this case is contained within the project EA. The EA must support the agency’s position that a FONSI is indicated. Blue Mountains, 161 F.3d at 1214. NEPA does not mandate that an EIS be based on a particular scientific methodology, nor does it require a reviewing court to weigh conflicting scientific data. Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 986 (9th Cir.1985). An agency must be permitted discretion in relying on the reasonable opinions of its own qualified experts, even if the court might find contrary views more persuasive. See, e.g., Kleppe, 427 U.S. at 420, n. 21, 96 S.Ct. 2718. NEPA does not allow an agency to rely on the conclusions and opinions of its staff, however, without providing both supporting analysis and data. Idaho Sporting Cong., 137 F.3d at 1150. Credible scientific evidence that contraindicates a proposed action must be evaluated and disclosed. 40 C.F.R. § 1502.9(b). If an EA or EIS adequately discloses effects, NEPA’s goal is satisfied. Inland Empire Pub. Lands Council v. U.S. Forest Serv., 88 F.3d 754, 758 (9th Cir.1996) (emphasis in original). In addition to arguing that the Forest Service violated NEPA in this case, Plaintiffs also contend that the gather violated the Wild Free-Roaming Horses and Burros Act, 16 U.S.C. § 1331 et seq. The Act, as discussed in more detail below, was enacted to designate and maintain specific ranges on public lands as sanctuaries for the horses’ protection and preservation. Id. at § 1333(a). Because neither NEPA nor the Act contains provisions allowing a private right of action (see Lujan v. National Wildlife Federation, 497 U.S. 871, 882, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) and Ecology Center Inc. v. United States, 192 F.3d 922, 924 (9th Cir.1999) for this proposition under NEPA and NFMA, respectively), a party can obtain judicial review of alleged violations of NEPA only" }, { "docid": "23261668", "title": "", "text": "comment. See Ocean Advocates v. United States Army Corps of Engineers, 167 F.Supp.2d 1200 (W.D.Wash.2001). The district court also denied BP’s summary judgment motion with respect to claims that OA did not have standing and that laches barred this action. Id. Following the court’s entry of judgment, the parties stipulated to an injunction that prohibits the use of the dock extension for loading or unloading crude oil, unless BP applies for a permit. The terms of the injunction provide that even if BP receives a permit for using the dock extension to load or unload crude oil, BP cannot use the new platform to load and unload crude oil at the same time that it also uses the original southern platform for that purpose. The injunction essentially allows BP to use only one of the two Cherry Point platforms for loading and unloading crude oil at any time. Standard Op Review We review de novo the district court’s grant of summary judgment. Oliver v. Keller, 289 F.3d 623, 626 (9th Cir.2002). We “must determine, viewing the evidence in the light most favorable to the nonmov-ing party, whether the district court correctly applied the relevant substantive law and whether there are any genuine issues of material fact.” Balint v. Carson City, 180 F.3d 1047, 1050 (9th Cir.1999) (en banc). The Administrative Procedure Act (APA) governs our review of the Corps’ action, conclusions, and findings of fact. Section 10(a), 5 U.S.C. § 702, sets out the standard for judicial review of decisions involving NEPA, Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882-83, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990), and the MMPA, 16 U.S.C. § 1374(d)(6) (allowing judicial review of MMPA permit decisions under the APA). We must set aside the Corps’ actions, findings, or conclusions if they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). This review is “searching and careful,” but the arbitrary and capricious standard is narrow, and we cannot substitute our own judgment for that of the Corps. Citizens to Preserve Overton Park, Inc. v. Volpe, 401" }, { "docid": "2794267", "title": "", "text": "are designed to secure the accomplishment of the vital purpose of NEPA. That result can be achieved only if the prescribed procedures are faithfully followed; grudging, pro forma compliance will not do. We think that the courts will better perform their necessarily limited role in enforcing NEPA if they apply § 706(2) (D) in reviewing environmental impact statements for compliance with NEPA than if they confine themselves within the straight jacket of §706(2) (A). 506 F.2d at 693. Violations of the Wild Horses’ Act. Plaintiff argues that the BLM is violating its. duties to manage and protect wild horses under the Wild Horses’ Act, 16 U.S.C. § 1331 et seq. Defendants argue that wide discretion has been given to the Secretaries of Interior and Agriculture in managing wild horse populations, and that, under 5 U.S.C. § 701(a)(2), the round up is action committed by law to agency discretion and beyond judicial review. The APA exception for action committed by law to agency discretion is a narrow one, however. In Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 820, 28 L.Ed.2d 136 (1971), the Court pointed out: The legislative history of the Administrative Procedure Act indicates that [the § 701(a)(2) exception] is applicable in those rare instances where “statutes are drawn in such broad terms that in a given case there is no law to apply.” S.Rep.No.752, 79th Cong. 1st Sess., 26 (1945). Defendant refers to 16 U.S.C. § 1333(b) (Section 3(b) of the Wild Horses’ Act) as giving the Secretary the discretion to conduct this round up. This section reads: (b) Where an area is found to be overpopulated, the Secretary, after consulting with the Advisory Board, may order old, sick, or lame animals to be destroyed in the most humane manner possible, and he may cause additional excess wild free-roaming horses and burros to be captured and removed for private maintenance under humane conditions and care, (emphasis added) The regulations reinforce this grant of discretion to the Secretary: (a) The authorized officer may relocate wild free-roaming horses and burros on public lands when" }, { "docid": "19702231", "title": "", "text": "under the waiver of sovereign immunity contained within the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706. Earth Island Institute v. U.S. Forest Sen., 351 F.3d 1291, 1300 (9th Cir.2003). Under the APA, the court must determine whether, based on a review of the agency’s administrative record, agency action was “arbitrary and capricious,” outside the scope of the agency’s statutory authority, or otherwise not in accordance with the law. Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1356 (9th Cir.1994). Review under the APA is “searching and careful.” Ocean Advocates v. U.S. Army Corps of Engineers, 361 F.3d 1108, 1118 (9th Cir. 2004). However, the court may not substitute its own judgment for that of the agen cy. Id. (citing Citizens to. Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977)). In reviewing an agency’s actions, then, the standard to be employed is decidedly deferential to the agency’s expertise. Salmon River, 32 F.3d at 1356. Although the scope of review for agency action is accordingly limited, such action is not unimpeachable. The reviewing court must determine whether there is a rational connection between the facts and resulting judgment so as to support the agency’s determination. Baltimore Gas and Elec. v. NRDC, 462 U.S. 87, 105-06, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983), citing Bowman Trans. Inc. v. Arkansas-Best Freight Sys. Inc., 419 U.S. 281, 285-86, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974). An agency’s review is arbitrary and capricious if it fails to consider important aspects of the issues before it, if it supports its decisions with explanations contrary to the evidence, or if its decision is either inherently implausible or contrary to governing law. The Lands Council v. Powell, 395 F.3d 1019, 1026 (9th Cir .2005). STANDARD Summary judgment is an appropriate procedure in reviewing agency decisions under the dictates of the APA. See, e.g., Northwest Motorcycle Assn. v. U.S. Dept. Of Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994). Under Federal Rule" }, { "docid": "20494803", "title": "", "text": "noted that “Presidential actions, of course, are not subject to APA review,” but then indicated that Tulare County might have, had it stated its claim with sufficient specificity, “overcome this bar by challenging the non-presidential actions of the Forest Service, referring to two Forest Service documents — an internal Forest Service memorandum interpreting the Proclamation and an interim plan that directs the day-to-day management of the Monument — allegedly showing that the Service is not acting consistently with the Proclamation.” Id. In Tulare County, however, the plaintiff sought judicial review of its claims that the U.S. Forest Service’s management plan for the Grand Sequoia National Monument violated NEPA and NFMA, not the presidential proclamation itself, because the Forest Service’s management plan failed to comply with directives in the proclamation. Id. at 1143; see also Kane County Utah v. Salazar, 562 F.3d 1077, 1082 (10th Cir.2009) (plaintiffs claim under the APA sought declaration that agency action violated FLPMA, not the monument proclamation). As the D.C. Circuit noted, review of agency action or inaction is routinely available when the underlying statutes, such as NEPA or NFMA, contain no private right of action. Tulare County, 306 F.3d at 1143 (“Neither NFMA nor NEPA provides a cause of action, so the claims must be brought under the [APA].”); see, e.g., Chrysler Corp. v. Brown, 441 U.S. 281, 317-19, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979) (it is not necessary to find a private right of action under a particular statute in order to enforce a federal agency’s compliance with that statute under the APA); Native Ecosystems Council v. U.S. Forest Service, 428 F.3d 1233, 1238 (9th Cir.2005) (“Because NFMA and NEPA do not provide a private cause of action to enforce their provisions, agency decisions allegedly violating NFMA and NEPA are reviewed under the Administrative Procedure Act.”); Oregon Natural Resources Council Fund v. Brong, 492 F.3d 1120, 1124 (9th Cir.2007) (agency action that allegedly violates the Federal Land Policy and Management Act of 1976 (“FLPMA”), 43 U.S.C. § 1701 et seq., is reviewed under the APA). That, however, is not the issue here. In" }, { "docid": "2758022", "title": "", "text": "reviews de novo a grant of summary judgment. Guatay Christian Fellowship v. Cnty. of San Diego, 670 F.3d 957, 970 (9th Cir.2011). We “must determine, viewing the evidence in the light most favorable to the nonmoving party, whether the district court correctly applied the relevant substantive law and whether there are any genuine issues of material fact.” Balint v. Carson City, 180 F.3d 1047, 1050 (9th Cir.1999) (en banc). Because neither NEPA nor the Act contain an internal standard of judicial review, the Administrative Procedure Act governs this court’s review of the BLM’s actions. Ocean Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d 846, 858-59 (9th Cir.2005). This court must set aside the BLM’s actions, findings, or conclusions if they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Although this review is “searching and careful,” the arbitrary and capricious standard is narrow, and this court cannot substitute its own judgment for that of the agency. Ocean Advocates, 402 F.3d at 858 (citation omitted). An agency’s decision is arbitrary and capricious if it fails to consider important aspects of the issue before it, if it supports its decisions with explanations contrary to the evidence, or if its decision is either inherently implausible or contrary to governing law. The Lands Council v. Powell, 395 F.3d 1019, 1026 (9th Cir.2005). Analysis A. Plaintiffs’ Wild Free-Roaming Horses and Burros Act claims The Act directs the Secretary of the Interior (“Secretary”) to “protect and manage wild free-roaming horses and burros as components of the public lands.... ” 16 U.S.C. § 1333(a). The BLM, as the designate of the Secretary, “shall manage wild free-roaming horses and burros in a manner that is designed to achieve and maintain a thriving natural ecological balance on the public lands.” Id. The BLM must also “maintain a current inventory of wild free-roaming horses and burros on given areas of the public lands.” § 1383(b)(1). As Congress explained: The purpose of such inventory shall be to: make determinations as to whether and where an overpopulation exists and whether action should" }, { "docid": "2132787", "title": "", "text": "of the comments received in response to the EA, the Forest Service issued a Decision Notice and Finding of No Significant Impact (“FONSI”) on September 13, 2010. AR 15232-86. The decision approved the Project with only minor modifications. In November 2010, plaintiffs challenged the Project via administrative protest. AR 15435^12. On December 16, 2010, the Forest Service responded to these protests and denied plaintiffs’ appeal. AR 15456-64. After exhausting their administrative remedies, plaintiffs filed a complaint in this Court, alleging that both the 2010 EA and FONSI violate the National Environmental Policy Act (“NEPA”). Plaintiffs maintain that the EA failed to disclose environmental information and consequences of the Goose Project on both the northern spotted owl habitat and the affected Riparian Reserves. Plaintiffs further contend that the proposed actions trigger NEPA’s requirement that the Forest Service prepare an Environmental Impact Statement (“EIS”). STANDARD OF REVIEW A federal agency’s compliance with NEPA is reviewed under the Administrative Procedure Act (“APA”). 5 U.S.C. § 706. Under the APA, a final agency action may be set aside if, after reviewing the administrative record, the court determines that the agency’s action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Natural Res. Def. Council v. Nat’l Marine Fisheries Serv., 421 F.3d 872, 877 (9th Cir.2005) (quoting 5 U.S.C. § 706(2)(A)). A decision is not arbitrary or capricious if the federal agency articulated a rational connection between the facts found and the choice made. Nat’l Wildlife Fed’n v. U.S. Army Corps of Eng’rs, 384 F.3d 1163, 1170 (9th Cir.2004); Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (courts examine “whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment”). Review under this standard is narrow, and the court may not substitute its judgment for that of the agency. Morongo Band of Mission Indians v. Fed. Aviation Admin., 161 F.3d 569, 573 (9th Cir.1988). Nevertheless, while this standardes deferential, the court must “engage in a substantial inquiry, ... a thorough," }, { "docid": "20112187", "title": "", "text": "of Record ER = Supplemental Excerpts of Record .Mining claims located on withdrawn lands are invalid. See United States v. Consolidated Mines & Smelting Co., 455 F.2d 432, 444 (9th Cir.1971). . In this case, plaintiffs challenge the Forest Service's actions on numerous grounds. Among these are two claims — challenges to arbitrary and capricious agency action and to wrongly withheld agency action — that plaintiffs describe as being asserted under the Administrative Pro cedure Act, 5 U.S.C. §§ 701-706. See BB at 31-34. However, it is equally the case that plaintiffs' other arguments against the challenged actions — that they were taken without statutory authority, or that they violate statutory standards— should also be regarded and treated as claims under the APA. This is because the APA is a framework statute that provides the generally applicable means for obtaining judicial review of actions taken by federal agencies. Generally, except where a party challenges an agency action as violating a federal law — be it a statute, regulation, or constitutional provision — that has been interpreted as conferring a private right of action, or where a particular regulatory scheme contains a specialized provision for obtaining judicial review of agency actions under the scheme, review under a framework statute such as the APA is the sole means for testing the legality of federal agency action. See Lujan v. National Wildlife Federation, 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990); Sierra Club v. Penfold, 857 F.2d 1307, 1315 (9th Cir.1988). Of the laws that plaintiffs charge the challenged Forest Service decisions violate, only the constitutional provisions confer private rights of action such that parties may sue directly under them and need not proceed under the APA for those claims. See Broughton Lumber Co. v. Yeut-ter, 939 F.2d 1547, 1556 (Fed.Cir.1991) (takings clause of U.S. Constitution is self-executing). All of plaintiffs' other claims must be brought under the APA. The APA instructs: The reviewing court shall— (1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found to be— (A)arbitrary," }, { "docid": "19702233", "title": "", "text": "of Civil Procedure 56, summary judgment may accordingly be had where, “viewing the evidence and the inferences arising therefrom in favor of the nonmovant, there are no genuine issues of material fact in dispute.” Id. at 1472. In cases involving agency action, however, the court’s task “is not to resolve contested facts questions which may exist in the underlying administrative record,” but rather to determine whether the agency decision was arbitrary and capricious as defined by the APA and discussed above. Gilbert Equipment Co., Inc. v. Higgins, 709 F.Supp. 1071, 1077 (S.D.Ala.1989); aff'd, Gilbert Equipment Co. Inc. v. Higgins, 894 F.2d 412 (11th Cir.1990); see also Occidental Eng’g Co. v. INS, 753 F.2d 766, 769 (9th Cir.1985). Consequently, in reviewing an agency decision, the court must be “searching and careful” in ensuring that the agency has taken a “hard look” at the environmental consequences of its proposed action. Ocean Advocates v. U.S. Army Corps of Engineers, 402 F.3d 846, 858-59 (9th Cir. 2005); Or. Natural Res. Council v. Lowe, 109 F.3d 521, 526 (9th Cir.1997). Because neither NEPA or the Wild Horse Act contain an internal standard of review, both statutory provisions and applicable case law confirm that the APA’s “arbitrary and capricious” standard applies. See 5 U.S.C. § 706(2)(A); Am. Horse Prot. Ass’n v. Frizzell, 403 F.Supp. 1206, 1217 (D.Nev.1975). ANALYSIS A. Violations of the Act In enacting the Wild Free-Roaming Horses and Burros Act (“Act”) in 1971, Congress mandated that wild horses, as “living symbols of the historic and pioneer spirit of the West,” were to be “protected from capture, branding, harassment or death,” and as such were to be considered an “integral part” of public lands in areas where they were presently found. 16 U.S.C. § 1331. The BLM, as the designate of the Secretary of Interior, is directed to accomplish this by maintaining “specific ranges on public lands as sanctuaries for their protection and preservation.” Id. at § 1333(a). Within only a few years of the Act’s passage, however, action became necessary “to prevent a successful program from exceeding its goals and causing animal habitat destruction.”" }, { "docid": "20404142", "title": "", "text": "‘fair chance of success on the merits.’ ” Marcos, 862 F.2d at 1362. Analysis I. Likelihood of Success/Serious Questions Plaintiffs assert that the BLM’s decision violates both the Wild Free-Roaming Horse and Burros Act (“Wild Horse Act”), 16 U.S.C. §§ 1331 et seq., and the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321 et seq. Judicial review of plaintiffs’ claims is governed by § 706 of the Administrative Procedure Act (“APA”). Under the APA, the court must set aside agency decisions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or “without observance of procedure required by law.” 5 U.S.C. § 706(2)(A), (D). Although the review of an agency decision is “searching and careful,” the “arbitrary and capricious standard is narrow” and the court cannot substitute its judgment for the agency. Ocean Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d 846, 858 (9th Cir.2005) (internal quotation marks omitted). “This deferential standard is designed to ‘ensure that the agency considered all of the relevant factors and that its decision contained no clear error of judgment.’ ” Pac. Coast Fed’n of Fishermen’s Ass’n, Inc. v. Nat’l Marine Fisheries Serv., 265 F.3d 1028, 1034 (9th Cir.2001). In deciding whether an agency violated the arbitrary and capricious standard, the court must ask whether the agency “articulated a rational connection between the facts found and the choice made.” Ariz. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife, 273 F.3d 1229, 1236 (9th Cir.2001). “Agency action should be overturned only when the agency has ‘relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.’ ” Pac. Coast, 265 F.3d at 1034. A decision that is “inconsistent with a statutory mandate or that frustrate[s] the congressional policy underlying a statute” cannot be upheld. Ocean Advocates, 402 F.3d at 859. The court reviews" }, { "docid": "13215716", "title": "", "text": "court’s grant of summary judgment de novo. McFarland v. Kempthorne, 545 F.3d 1106, 1110 (9th Cir.2008). The Administrative Procedure Act (“APA”) provides the authority for our review of decisions under NEPA and NFMA. Lands Council v. McNair (Lands Council II), 537 F.3d 981, 987 (9th Cir.2008) (en banc). Under the APA, an agency decision will be set aside only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see Ecology Ctr., Inc. v. Austin, 430 F.3d 1057, 1062 (9th Cir.2005). “Review under the arbitrary and capricious standard ‘is narrow, and [we do] not substitute [our] judgment for that of the agency.’ ” Lands Council II, 537 F.3d at 987 (quoting Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1156 (9th Cir.2006)) (alterations in original). “Rather, we will reverse a decision as arbitrary and capricious only if the agency relied on factors Congress did not intend it to consider, ‘entirely failed to consider an important aspect of the problem,’ or offered an explanation ‘that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.’ ” Id. (quoting Earth Island Inst., 442 F.3d at 1156). III. Background A. Governing Provisions The National Forest Management Act, 16 U.S.C. §§ 1600 et seq., provides both procedural and substantive requirements. Procedurally, it requires the Forest Service to develop and maintain forest resource management plans. Id. § 1604(a). After a forest plan is developed, all subsequent agency action, including site-specific plans like the nine projects challenged here, must comply with NFMA and the governing forest plan. Id. § 1604(i); see Lands Council II, 537 F.3d at 989. Substantively, NFMA requires that forest plans “provide for diversity of plant and animal communities based on the suitability and capability of the specific land area.” 16 U.S.C. § 1604(g)(3)(B). Forest plans must also ensure that timber will be harvested only where “soil, slope or other watershed conditions will not be irreversibly damaged,” and provide protection for streams" }, { "docid": "23494033", "title": "", "text": "only specifically challenged the Indian Soda and Conde Shell projects, because those were the only two for which a final agency action (the BLM’s issuance of a Record of Decision) had been taken at the time of the complaint. On cross-motions for summary judgment, the district court entered judgment in favor of the BLM. While there was no immediate harvest activity on the Conde Shell project, harvesting began on the Indian Soda project, extending to fifteen of the sixteen individual harvest areas. KS Wild moved the district court to enjoin further harvest activities in both areas. The court issued the injunction pending the resolution of this appeal. II. STANDARDS OF REVIEW A “district court’s determination on summary judgment that the BLM complied with NEPA is reviewed de novo.” Kern v. Bureau of Land Mgmt., 284 F.3d 1062, 1069-70 (9th Cir.2002). The agency’s actions, findings, and conclusions will be set aside if they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”’ Ocean Advocates v. U.S. Army Corps of Eng’rs, 361 F.3d 1108, 1118 (9th Cir.2004) (quoting 5 U.S.C. § 706(2)(A)). Courts apply a “rule of reason” standard in reviewing the adequacy of a NEPA document. Churchill County v. Norton, 276 F.3d 1060,1071 (9th Cir.2001). Through the NEPA process, federal agencies must “carefully consider[ ] detailed information concerning significant environmental impacts,” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989), but they are “not require[d] to do the impractical.” Inland Empire Public Lands Council v. United States Forest Serv., 88 F.3d 754, 764 (9th Cir.1996). Alternatively phrased, the task is to ensure that the agency has taken a “hard look” at the potential environmental consequences of the proposed action. Churchill County, 276 F.3d at 1072. The NEPA statute is accompanied by implementing regulations promulgated by the Council on Environmental Quality (“CEQ”) and found at 40 C.F.R. §§ 1501.1-1508.28. Courts must “to the fullest extent possible” interpret these regulations consistently with the policies embodied in NEPA. Churchill County, 276 F.3d at 1072 (quoting Lathan v. Brinegar, 506 F.2d 677," }, { "docid": "15546817", "title": "", "text": "prudential inquiry is “whether a particular plaintiff has been granted a right to sue by the statute under which he or she brings suit.” City of Sausalito, 386 F.3d at 1199. “Because NEPA does not provide for a private right of action, plaintiffs challenging an agency action based on NEPA must do so under the Administrative Procedure Act.” Ashley Creek Phosphate Co. v. Norton, 420 F.3d 934, 939 (9th Cir.2005); see also Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). A plaintiff wishing to establish standing under the APA must show that there has been a final agency action adversely affecting it and that, as a result, it suffers a legal wrong or that its injury falls within the “zone of interests” of the statutory provision that the plaintiff claims was violated. Nat’l Wildlife Fed’n, 497 U.S. at 882, 110 S.Ct. 3177. The Forest Service has not challenged Ouachita’s prudential standing in this suit. We tarry here only to note that any prudential challenge would be futile. It is well settled that “a final EIS or the record of decision issued thereon constitute!] final agency action.” Sw. Williamson County Cmty. Ass’n, Inc. v. Slater, 173 F.3d 1033, 1036 (6th Cir.1999). In addition, plaintiffs in the Ouachita coalition have alleged that the Forest Service’s failure to comply with NEPA with respect to revisions to certain forest plans in the Southern Region have adversely affected the environment, which is the source of their injury. Finally, since the injury alleged is environmental, it falls within the zone of interests protected by NEPA (via the APA). Thus, we conclude that Ouachita has satisfied both the constitutional and prudential standing tests and is therefore a proper plaintiff. We must now turn to the remaining justiciability issues in this appeal — ripeness, which the district court found dispositive, and mootness, which the Forest Service raised for the first time on appeal. 2. Ripeness We note at the outset of the discussion that the Forest Service has abandoned its ripeness challenge and instead frames its argument in terms of" }, { "docid": "6247961", "title": "", "text": "action challengeable under the APA. A magistrate judge considered the motion and recommended dismissal. The magistrate judge found that there was no final agency action and therefore the court lacked jurisdiction. The district court adopted the findings and recommendation of the magistrate judge and dismissed ONRC’s action against BLM. II ONRC argues that the decision not to change the status quo is a final agency action challengeable under the APA Additionally, ONRC points to BLM’s letter responding to the ONRC petition. ONRC asserts that the refusal to impose a moratorium as requested in the petition is a final agency action. We review “a district court’s grant of a motion to dismiss under Rule 12(b)(1) de novo.” Mundy v. United States, 983 F.2d 950, 952 (9th Cir.1993). Neither NEPA nor FLPMA contain provisions allowing a right of action. See Lujan v. National Wildlife Fed’n, 497 U.S. 871, 882, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). A party alleging violations of NEPA and FLPMA can bring an action under the APA challenging an “agency action.” See id. (quoting 5 U.S.C. § 702). To demonstrate statutory standing under the APA, a plaintiff must (1) identify a final agency action; and (2) show that the injury complained of “falls within the ‘zone of interests’ sought to be protected by the statutory provision whose Violation forms the basis ... [of the] complaint.” Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1353-54 (9th Cir.1994) (quoting Lujan v. National Wildlife Fed’n, 497 U.S. 871, 882, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)). See also National Wildlife Fed’n, 497 U.S. at 882, 110 S.Ct. 3177 (“When ... review is sought not pursuant to specific authorization in the substantive statute, but only under the general review provisions of the APA, the ‘agency action’ in question must be ‘final agency action.’ ”) (quoting 5 U.S.C. § 704). There are two parts to ONRC’s argument that BLM’s refusal to institute a moratorium on certain actions is a final agency action under the APA. First, ONRC argues that BLM’s failure to implement a moratorium on certain actions pending completion of the" }, { "docid": "20404141", "title": "", "text": "(2) they will likely suffer irreparable injury if relief is denied; (3) the balance of equities tips in their favor; and (4) an injunction is in the public interest. Winter v. Natural Res. Defense Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 374, 172 L.Ed.2d 249 (2008). Alternatively, an injunction may issue under the “sliding scale” approach if there are serious questions going to the merits and the balance of hardships tips sharply in plaintiffs’ favor, so long as plaintiffs still show a likelihood of irreparable injury and that an injunction is in the public interest. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir.2011). “Serious questions are those which cannot be resolved one way or the other at the hearing on the injunction.” Bernhardt v. Los Angeles County, 339 F.3d 920, 926-27 (9th Cir.2003) (internal quotation marks omitted) (citing Republic of the Philippines v. Marcos, 862 F.2d 1355, 1362 (9th Cir.1988)). They “need not promise a certainty of success, nor even present a probability of success, but must involve a ‘fair chance of success on the merits.’ ” Marcos, 862 F.2d at 1362. Analysis I. Likelihood of Success/Serious Questions Plaintiffs assert that the BLM’s decision violates both the Wild Free-Roaming Horse and Burros Act (“Wild Horse Act”), 16 U.S.C. §§ 1331 et seq., and the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321 et seq. Judicial review of plaintiffs’ claims is governed by § 706 of the Administrative Procedure Act (“APA”). Under the APA, the court must set aside agency decisions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or “without observance of procedure required by law.” 5 U.S.C. § 706(2)(A), (D). Although the review of an agency decision is “searching and careful,” the “arbitrary and capricious standard is narrow” and the court cannot substitute its judgment for the agency. Ocean Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d 846, 858 (9th Cir.2005) (internal quotation marks omitted). “This deferential standard is designed to ‘ensure that the agency considered all of the relevant factors and that its" }, { "docid": "15583804", "title": "", "text": "West Institute filed suit against the Forest Service alleging violations of the IPNF Plan, NFMA, and NEPA. Contemporaneously, Lands Council and Wild West Institute sought a temporary restraining order and a preliminary injunction to halt the Project. Boundary County, City of Bonners Ferry, City of Moyie Springs, Ever-hart Logging, Inc., and Regehr Logging, Inc. (collectively, Intervenors) intervened on behalf of the Forest Service. The district court denied Lands Council’s motion for a temporary restraining order as moot, and also denied its motion for a preliminary injunction. Lands Council appealed, and we reversed the district court’s decision in Lands Council v. McNair, 494 F.3d 771 (9th Cir.2007). However, after rehearing the case en banc in Lands Council v. McNair (Lands Council ), 537 F.3d 981 (9th Cir.2008) (en banc), we unanimously affirmed the district court’s denial of injunctive relief. Following the issuance of our decision en banc, the parties filed cross-motions for summary judgment in the district court. The district court granted the Forest Service’s motion for summary judgment, and denied Lands Council’s motion for summary judgment. Lands Council filed this appeal. STANDARD OF REVIEW We have jurisdiction under 28 U.S.C. § 1291. We review a grant of summary judgment de novo. Swanson v. U.S. Forest Serv., 87 F.3d 339, 343 (9th Cir.1996). Section 706 of the Administrative Procedure Act (APA) governs judicial review of agency decisions under the NFMA and NEPA. 5 U.S.C. § 706; City of Sausalito v. O’Neill, 386 F.3d 1186, 1205 (9th Cir.2004) (“Because the statutes ... do not contain separate provisions for judicial review, our review is governed by the APA.”). An agency’s action must be upheld unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “Review under the arbitrary and capricious standard is narrow and we do not substitute our judgment for that of the agency.” Lands Council, 537 F.3d at 987 (internal quotations marks and brackets omitted) (quoting Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1156 (9th Cir.2006), abrogated on other grounds by Winter v. Natural Res. Def. Council, Inc.," }, { "docid": "15546816", "title": "", "text": "focus on causation is not harm to the environment, but harm to the plaintiffs. Laidlaw, 528 U.S. at 181, 120 S.Ct. 693. Here, as we discussed earlier, the plaintiffs were harmed when their procedural rights under NEPA were violated. Since the Forest Service (according to Ouachita) failed to follow NEPA, it is clear that the Forest Service caused Oua-chita’s alleged injury. That is the extent of Ouachita’s burden to establish causation. The final piece of constitutional standing is redressability. The. court, if it concludes that the Forest Service has failed to follow NEPA, has the power to order the agency to comply. As the injury Ouachita asserts is the Forest Service’s failure to comply with NEPA, that injury is plainly redressable. See, e.g., Utah v. Babbitt, 137 F.3d 1193, 1216 & n. 37 (10th Cir.1998). Ouachita has therefore satisfied the elements of constitutional standing. Concluding that Ouachita meets the constitutional standing test does not entirely resolve the standing inquiry— Ouachita still must demonstrate that it has satisfied the nonconstitutional or prudential standing requirements. The relevant prudential inquiry is “whether a particular plaintiff has been granted a right to sue by the statute under which he or she brings suit.” City of Sausalito, 386 F.3d at 1199. “Because NEPA does not provide for a private right of action, plaintiffs challenging an agency action based on NEPA must do so under the Administrative Procedure Act.” Ashley Creek Phosphate Co. v. Norton, 420 F.3d 934, 939 (9th Cir.2005); see also Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). A plaintiff wishing to establish standing under the APA must show that there has been a final agency action adversely affecting it and that, as a result, it suffers a legal wrong or that its injury falls within the “zone of interests” of the statutory provision that the plaintiff claims was violated. Nat’l Wildlife Fed’n, 497 U.S. at 882, 110 S.Ct. 3177. The Forest Service has not challenged Ouachita’s prudential standing in this suit. We tarry here only to note that any prudential challenge would be futile." }, { "docid": "19237931", "title": "", "text": "legal requirements. Id. at 1158-63. WildWest timely appealed. II. Standard of Review We review the district court’s grant of summary judgment de novo. McFarland v. Kempthorne, 545 F.3d 1106, 1110 (9th Cir.2008). The Administrative Procedure Act (“APA”) provides the authority for our review of decisions under NEPA and NFMA. Lands Council v. McNair (Lands Council II), 537 F.3d 981, 987 (9th Cir.2008) (en banc). Under the APA, an agency decision will be set aside only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see Ecology Ctr., Inc. v. Austin, 430 F.3d 1057, 1062 (9th Cir.2005). “Review under the arbitrary and capricious standard ‘is narrow, and [we do] not substitute [our] judgment for that of the agency.’ ” Lands Council II, 537 F.3d at 987 (quoting Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1156 (9th Cir.2006)) (alterations in original). “Rather, we will reverse a decision as arbitrary and capricious only if the agency relied on factors Congress did not intend it to consider, ‘entirely failed to consider an important aspect of the problem,’ or offered an explanation ‘that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.’ ” Id. (quoting Earth Island Inst., 442 F.3d at 1156). III. Background A. Governing Provisions The National Forest Management Act, 16 U.S.C. §§ 1600 et seq., provides both procedural and substantive requirements. Procedurally, it requires the Forest Service to develop and maintain forest resource management plans. Id. § 1604(a). After a forest plan is developed, all subsequent agency action, including site-specific plans like the nine projects challenged here, must comply with NFMA and the governing forest plan. Id. § 1604(i); see Lands Council II, 537 F.3d at 989. Substantively, NFMA requires that forest plans “provide for diversity of plant and animal communities based on the suitability and capability of the specific land area.” 16 U.S.C. § 1604(g)(3)(B). Forest plans must also ensure that timber will be harvested only where" }, { "docid": "6247962", "title": "", "text": "(quoting 5 U.S.C. § 702). To demonstrate statutory standing under the APA, a plaintiff must (1) identify a final agency action; and (2) show that the injury complained of “falls within the ‘zone of interests’ sought to be protected by the statutory provision whose Violation forms the basis ... [of the] complaint.” Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1353-54 (9th Cir.1994) (quoting Lujan v. National Wildlife Fed’n, 497 U.S. 871, 882, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)). See also National Wildlife Fed’n, 497 U.S. at 882, 110 S.Ct. 3177 (“When ... review is sought not pursuant to specific authorization in the substantive statute, but only under the general review provisions of the APA, the ‘agency action’ in question must be ‘final agency action.’ ”) (quoting 5 U.S.C. § 704). There are two parts to ONRC’s argument that BLM’s refusal to institute a moratorium on certain actions is a final agency action under the APA. First, ONRC argues that BLM’s failure to implement a moratorium on certain actions pending completion of the Eastside EIS was a challengeable final agency action. Second, ONRC contends that the action was final despite the fact that the action was not' site-specific but regional in character. In support of its' first\" argument that BLM’s refusal to institute a moratorium was an agency action under the APA, ONRC relies on two cases that hold certain inaction equates to agency action. See City of Chicago v. United States, 396 U.S. 162, 166-67, 90 S.Ct. 309, 24 L.Ed.2d 340 (1969) (holding that agency decision not to take action was not “inaction” but rather a decision on the merits resulting in a reviewable agency action); Rochester Tel Corp. v. United States, 307 U.S. 125, 140-42, 59 S.Ct. 754, 83 L.Ed. 1147 (1939) (eliminating the distinction between ‘affirmative orders’ and ‘negative orders’ because “dismissing a complaint on the merits and maintaining the status quo is an exercise of administrative function, no more and no less, than an order directing some change in status”). In these eases, however, the lack of action was based on an evaluation of" }, { "docid": "19702230", "title": "", "text": "Credible scientific evidence that contraindicates a proposed action must be evaluated and disclosed. 40 C.F.R. § 1502.9(b). If an EA or EIS adequately discloses effects, NEPA’s goal is satisfied. Inland Empire Pub. Lands Council v. U.S. Forest Serv., 88 F.3d 754, 758 (9th Cir.1996) (emphasis in original). In addition to arguing that the Forest Service violated NEPA in this case, Plaintiffs also contend that the gather violated the Wild Free-Roaming Horses and Burros Act, 16 U.S.C. § 1331 et seq. The Act, as discussed in more detail below, was enacted to designate and maintain specific ranges on public lands as sanctuaries for the horses’ protection and preservation. Id. at § 1333(a). Because neither NEPA nor the Act contains provisions allowing a private right of action (see Lujan v. National Wildlife Federation, 497 U.S. 871, 882, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) and Ecology Center Inc. v. United States, 192 F.3d 922, 924 (9th Cir.1999) for this proposition under NEPA and NFMA, respectively), a party can obtain judicial review of alleged violations of NEPA only under the waiver of sovereign immunity contained within the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706. Earth Island Institute v. U.S. Forest Sen., 351 F.3d 1291, 1300 (9th Cir.2003). Under the APA, the court must determine whether, based on a review of the agency’s administrative record, agency action was “arbitrary and capricious,” outside the scope of the agency’s statutory authority, or otherwise not in accordance with the law. Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1356 (9th Cir.1994). Review under the APA is “searching and careful.” Ocean Advocates v. U.S. Army Corps of Engineers, 361 F.3d 1108, 1118 (9th Cir. 2004). However, the court may not substitute its own judgment for that of the agen cy. Id. (citing Citizens to. Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977)). In reviewing an agency’s actions, then, the standard to be employed is decidedly deferential to the agency’s expertise." } ]

[ { "docid": "18593417", "title": "", "text": "had purchased the property for $2.7 million, and that the Massachusetts Land Court approved the sale. In their briefs, appellants were able to raise a number of supposed irregularities in the advertising and conduct of the sale. The bank responded not by contesting appellants’ facts, but by explaining them. As the court stated in In re Bleaufontaine, Inc., 5 Cir., 1981, 634 F.2d 1383, 1388, in response to a similar due process claim, if the appellants “had wished to introduce any other evidence relevant to bad faith, they had many opportunities in which to do so.” Turning to the merits, we agree with the district court that the bank was a good faith purchaser of the property within the meaning of Rule 805 and, consequently, that appellants’ appeals of the bankruptcy court order were moot. We note at the outset that the fact that the bank was both the seller and purchaser of the property, and a party to the dismissed appeal does not affect its status under Rule 805. The rule does not distinguish between mortgage holders and other potential purchasers of encumbered property. It is designed to give finality to orders of the bankruptcy court that have not been stayed pending appeal. E. g., In re Bleaufontaine, Inc., ante, at 1389 n.12; In re Rock Industries Mach. Corp., 7 Cir., 1978, 572 F.2d 1195, 1199; 14 Collier on Bankruptcy ¶ 62.03 (14th ed. 1976). No less than any other potential purchaser, the bank was entitled to bid upon the Greylock Glen property with the assurance that its title to the property would not be affected by appellate review months or even years later. Appellants, in default on their mortgages, were entitled to no more relief than the rules and statutes permitted them. No definition of “good faith purchaser” appears in the bankruptcy laws, but the traditional definition of the phrase, or its like, is one who purchases assets for value, in good faith, and without knowledge of adverse claims. E. g., Industrial Nat’l Bank v. Leo’s Used Car Exchange, Inc., 1973, 362 Mass. 797, 800, 291 N.E.2d 603," } ]

[ { "docid": "18001989", "title": "", "text": "See, e.g., Trone v. Roberts Farms, Inc., 652 F.2d 793 (9th Cir.1981). In this case, the only effective relief for any of Tompkins’ appeals would be reversal of the sale of the apartment complex—a remedy which we hold is not available. Therefore, we affirm the district court’s decision to dismiss all of the appeals filed by Tompkins. . The misconduct which would destroy a buyer’s “good faith purchaser” status at a judicial sale ordinarily “involves fraud, collusion between the purchaser and other bidders or the trustee, or an attempt to take grossly unfair advantage of other bidders.” In re Rock Indus. Machinery Corp., 572 F.2d at 1198. . In the context of bankruptcy proceedings, a purchaser is deemed to have paid “value” if he paid at least 75% of the appraised value of the assets. See, e.g., Greylock Glen Corp. v. Community Sav. Bank, 656 F.2d at 4; In re Rock Indus. Machinery Corp., 572 F.2d at 1197 n. 1. Here, however, there was no appraisal. . See Bleaufontaine, Inc. v. Roland Int’l., 634 F.2d at 1389 (the “factual findings of a bankruptcy court must be accepted and affirmed unless the appellate court finds them clearly erroneous”). . See Okla.Stat.Ann. tit. 54, § 150 (West 1969). . As indicated, the agreement which resulted in the creation of the debtor stated that the purpose of the debtor was to acquire the apartment complex owned by Leroy. The agreement, moreover, set forth the terms of the transaction. Thus, Tompkins not only ratified the purchase of the apartment complex but also explicitly consented to Leroy becoming a creditor of the debtor. . Cf. Bleaufontaine, Inc. v. Roland Int’l, 634 F.2d 1383 (5th Cir.1981) (a secured creditor who purchases the security at a bankruptcy sale can be a “good faith purchaser”). . If not for the fact that Tompkins knowingly approved the purchase of the apartment complex from Leroy in the first instance, the result in this case might be different. See, e.g., Donovan & Schuenke v. Sampsell, 226 F.2d 804 (9th Cir.), cert. denied sub nom., Freedman v. Donovan & Schuenke, 350 U.S." }, { "docid": "18543757", "title": "", "text": "the liquidation value of the assets. The UMWA did not present any independent appraisers or appraisals that the value of assets being sold is greater than the offer of Massey. Therefore, the Court finds that the purchase price for these assets as offered by Massey is fair and reasonable and that the Court would subject other creditors-to risk of complete or substantial loss by failure to approve the proposed sale. The “good faith” element under § 368(b) requires a bankruptcy court to make a finding with respect to the “good faith” of the purchaser. In re Abbotts Dairies, Inc., 788 F.2d 143 (3d Cir.1986). The Third Circuit found: Unfortunately, neither the Bankruptcy Code nor the Bankruptcy Rules attempts to define ‘good faith’_ ‘The requirement that a purchaser act in good faith ... speaks to the integrity of his conduct in the course of the sale proceedings. Typically, the misconduct that would destroy a purchaser’s good faith status at a judicial sale involves fraud, collusion between the purchaser and other bidders or the trast-ee, or an attempt to take grossly unfair advantage of other bidders.’ Id. at 148, quoting, In re Rock Indus. Mach. Corp., 572 F.2d 1195, 1198 (7th Cir.1978). There is nothing in this record that Massey, as a proposed purchaser of substantially all of the Debtors’ assets, did not provide its offer in good faith. Objecting creditors have failed to demonstrate that Massey’s offer was motivated by fraud, collusion or attempt to take unfair advantage of other bidders. In fact, it appears that Massey performed its due diligence, without regard or influence of other potential bids, by determining the amount of fixed capital investment, estimating the amount of remaining coal reserves and potential additional coal reserves, formulating economic projections, and making a proposal to the Debtors in the form of a letter of intent. The Debtors’ business broker marketed the Debtors’ assets to other major coal companies, including those who are signatories under the NBCWA, Pittston and Consolidated Coal. However, such companies declined to submit bids on the assets. Additionally, although the officer of Chicopee, Paul Moran, testified" }, { "docid": "20832927", "title": "", "text": "Arrowhead, Ltd., 429 B.R. 546, 550-52 (W.D.Tex.2010). . Hardage v. Herring Nat'l Bank, 837 F.2d 1319, 1323 (5th Cir.1988) (quoting In re Willemain, 764 F.2d 1019, 1023 (4th Cir.1985)); see also SEC v. Janvey, 404 Fed.Appx. 912, 916 (5th Cir.2010) (applying the \"good faith” standard set forth in Hardage); see also Jeremiah v. Richardson, 148 F.3d 17, 23 (1st Cir. 1998) (“A 'good faith’ purchaser is one who buys property in good faith and for value, without knowledge of adverse claims.” (internal quotation marks omitted) (emphasis in original)). . In re Bleaufontaine, Inc., 634 F.2d 1383, 1388 n. 7 (5th Cir.1981) (quoting In re Rock Indus. Mach. Corp., 572 F.2d 1195, 1198 (7th Cir.1978)). . In re Sax, 796 F.2d 994, 998 (7th Cir. 1986) (internal quotation marks omitted). . In re Adams Apple, 829 F.2d at 1488; see also In re W. Pac. Airlines, Inc., 181 F.3d 1191, 1195 (10th Cir.1999); In re Saybrook Mfg. Co., 963 F.2d 1490, 1493 (11th Cir.1992); In re EDC Holding Co., 676 F.2d 945, 947 (7th Cir.1982). . In re EDC Holding Co., 676 F.2d at 947. . Id. . Id. . See In re Rock Indus. Mach. Corp., 572 F.2d at 1197-98 (defining \"good faith purchaser” as \"one who purchases the assets for value, in good faith, and without notice of adverse claims” while also noting that \"the misconduct that would destroy a purchaser’s good faith status at a judicial sale involves fraud, collusion between the purchaser and other bidders or the trustee, or an attempt to take grossly unfair advantage of other bidders”). . 11 U.S.C. § 101(5). A claim means a \"right to payment, whether or not such right is reduced to judgment, liquidated, unliqui-dated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.” Id. Similarly, a claim means \"right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, un-matured, disputed, undisputed, secured, or unsecured.” Id. . See In re Quemer, 7 F.3d" }, { "docid": "18992863", "title": "", "text": "669-70 (9th Cir.1971) (affirming district court order setting aside private sale of an antitrust cause of action by the trustee to the bankrupt, because “a sale to the bankrupt, especially when it is of an asset such as a cause of action of unknown but potentially great value, as here, offers opportunities for skulduggery that make it suspect”). Thus, the district court should have remanded the matter to the bankruptcy court for a finding as to whether ADC purchased Abbotts’ assets “in good faith,” or whether ADC and Abbotts (through Mr. Gwinn) colluded in an attempt to take unfair advantage of prospective bidders like Cumberland; it should not have taken it upon itself to determine this question in the first instance. See, e.g., In re Bleaufontaine, Inc., 634 F.2d 1383, 1386 (5th Cir.1981) (district court remanded appeals from an order approving the sale of the debtor’s assets to bankruptcy court with directions to determine the good faith status of the purchaser). B. Traditionally, courts have held that “[f]air and valuable consideration is given in a bankruptcy sale when the purchaser pays 75% of the appraised value of the assets.” In re Rock Indus. Mach. Corp., 572 F.2d at 1197 n. 1. In the present case, no appraisal of Abbotts’ assets was conducted or introduced in the bankruptcy court. ADC argues, however, that a public “auction,” as opposed to appraisals and other evidence, is the best possible determinant of the value of Abbotts’ assets; alternatively, ADC and Abbotts argue that we are bound by the bankruptcy court’s finding that the prices paid for Abbotts’ assets “are fair and reasonable.” Generally speaking, an auction may be sufficient to establish that one has paid “value” for the assets of a bankrupt. In the present case, on the other hand, we reject the assertion that the “auction” conducted for Abbotts’ assets necessarily establishes that ADC paid “value.” If Abbotts and ADC colluded with respect to the timing of Abbotts’ petitions for bankruptcy and its motion to approve the Interim Agreement in an attempt to chill the bidding for the assets involved, it would follow" }, { "docid": "6315231", "title": "", "text": "meant that the ultimate decision would be postponed until after the record was completed. See infra note 8, at 1388. Therefore, the district court acted properly when it finally ruled on the pending dismissal motion in its June 29, 1978 order. Furthermore, the bankrupts’ finality argument does not recognize that any appeal of the good faith finding would have been to the same district court in any event. Undoubtedly after a thorough review, the district court found that the factual finding was not clearly erroneous when it was incorporated into the final Rule 805 determination. As a result, any appeal would have been inconsequential. . Appellants contend that the district court subsequently failed to comply with Judge Brown’s order. This assertion is made without any explanation or support. . The bankruptcy court relied upon the definition of a good faith purchaser found in In re Rock Industries Machinery Corp., 572 F.2d 1195 (7th Cir. 1978). That court reasoned that such “speaks to the integrity of his [purchaser] conduct in the course of the sale proceedings. Typically, the misconduct that would destroy a purchaser’s good faith status ... involves fraud, collusion between the purchaser and other bidders or the trustee, or an attempt to take grossly unfair advantage of other bidders.” Id. at 1198. Although the appellants do not question the above rationale’s applicability, we feel such a characterization is most appropriate in this type of situation., . We find the following language in the May 30, 1978 district court order remanding the appeals to the bankruptcy court quite relevant: In circumstances such as these, this Court considers the appropriate course of action to be a remand of the appeals to the Bankruptcy Judge for consideration and entry of a finding as to whether the purchaser was a good faith purchaser. Such action would not be required in all cases involving the sale of a bankrupt’s property where a stay is not granted. However, in this case, where the issue of the good faith of the purchaser was raised in the Bankruptcy Court, it appears proper to remand the cases to" }, { "docid": "18001988", "title": "", "text": "Frey again acted on behalf of the debtor. . Tompkins claims that the hearing conducted on remand did not comply with due process requirements. Specifically, Tompkins argues that the district court erred by refusing to consider evidence which allegedly indicated that Leroy’s bid was not the highest. Earlier, however, the bankruptcy court had conducted a full evidentiary hearing to determine the relative merits of the various bids, at which time it concluded that Leroy’s bid was the highest. Thus, it appears that Tompkins was afforded an opportunity to voice his opinions at a meaningful time. Therefore, there was no denial of due process. See Bleaufontaine, Inc. v. Roland Int’l, 634 F.2d 1383, 1388 (5th Cir.1981). .Fed.R.Bankr.P. 805 provides, in pertinent part, as follows: . Our discussion above is phrased in terms of an appeal from an order approving the sale of property of the debtor, but the mootness principle derived from Fed.R.Bankr.P. 805 is actually much broader. It extends to any appeal for which effective relief is precluded by the sale of the debtor’s property. See, e.g., Trone v. Roberts Farms, Inc., 652 F.2d 793 (9th Cir.1981). In this case, the only effective relief for any of Tompkins’ appeals would be reversal of the sale of the apartment complex—a remedy which we hold is not available. Therefore, we affirm the district court’s decision to dismiss all of the appeals filed by Tompkins. . The misconduct which would destroy a buyer’s “good faith purchaser” status at a judicial sale ordinarily “involves fraud, collusion between the purchaser and other bidders or the trustee, or an attempt to take grossly unfair advantage of other bidders.” In re Rock Indus. Machinery Corp., 572 F.2d at 1198. . In the context of bankruptcy proceedings, a purchaser is deemed to have paid “value” if he paid at least 75% of the appraised value of the assets. See, e.g., Greylock Glen Corp. v. Community Sav. Bank, 656 F.2d at 4; In re Rock Indus. Machinery Corp., 572 F.2d at 1197 n. 1. Here, however, there was no appraisal. . See Bleaufontaine, Inc. v. Roland Int’l., 634 F.2d" }, { "docid": "17606951", "title": "", "text": "Rickel Home Centers, Inc., 209 F.3d 291, 300 (3d Cir.2000), for the proposition that § 363(m) does not apply because “the sale of Tract 1 was a § 365 sale without assignment of the contract.” This argument is unavailing. Section 363(m) concerns “the sale or lease of property,” without making any mention of assignment. Further, Weingarten and In re Rickel Home Centers, Inc. involved sale and assignment situations, and they do not purport to limit § 363(m) to such situations. See Weingarten, 396 F.3d at 742-44; In re Rickel Home Ctrs., Inc., 209 F.3d at 302 (explaining “ ‘section 363(m) governs the sale of the [property] here, notwithstanding that section 365 applies to the particular mechanics of conveyance’ ” (quoting Krebs Chrysler-Plymouth, Inc. v. Valley Motors, Inc., 141 F.3d 490, 498 (3d Cir.1998))). Appellants alternatively argue § 363 does not apply because the sale was not valid under Nebraska law, which governs the interpretation of the purchase agreement. This argument is, essentially, a challenge to Badami’s authorization to complete the sale, which § 363(m) expressly bars. We reject this attempted end-run around § 363(m). Finally, appellants maintain § 363(m) does not apply because Rolling Stone was not a good faith purchaser. Lack of good faith is shown by misconduct surrounding the sale. Typically, the requisite misconduct necessary to establish a lack of good faith involves “fraud, collusion between the purchaser and other bidders or the trustee, or an attempt to take grossly unfair advantage of other bidders.” In re Burgess, 246 B.R. 352, 356 (8th Cir.BAP 2000) (quoting In re Rock Indus. Mach. Corp., 572 F.2d 1195, 1198 (7th Cir.1978)). Appellants have not alleged fraud, collusion, or “an attempt to take grossly unfair advantage of other bidders.” Id. Appellants, citing In re Willemain, 764 F.2d 1019, 1023 (4th Cir.1985), claim Rolling Stone was not a good faith purchaser because it knew Sears Cattle owned an interest in Tract 1 at the time it signed the purchase agreement and knew of Sears Cattle’s, Robert’s, and Korley’s adverse claims when the sale closed. See In re Willemain, 764 F.2d at 1023 (defining" }, { "docid": "6567720", "title": "", "text": "16, 1988, order of the Bankruptcy Court approved the sale of the Services Companies to NCNB Texas pursuant to §§ 363(b) and (f) of the Bank ruptcy Code. The sale was consummated after the order was final and while no stay was in effect. Pursuant to § 363(m) and the authorities cited above, this Court is of the opinion that it can fashion no relief. Appellant raises two issues in response to Appellees’ mootness argument which the Court will address briefly. First, Appellant argues that a completed sale of property is not moot under § 363(m) unless the Bankruptcy Court makes a specific finding that the purchaser of such property acted in good faith. In support of this argument, Appellant cites In re Bleaufontaine Inc., 634 F.2d 1383 (5th Cir.1981). However, in that case, the Fifth Circuit did not require such a finding, and it is unclear whether such a finding is necessary. See e.g., In re Zinke, 97 B.R. 155 (E.D.N.Y.1989) (provision of Bankruptcy Code insulating authorized sale from appeal unless authorization of sale is stayed pending appeal did not require bankruptcy court to make explicit finding of “good faith” prior to authorization of sale). In Matter of Andy Frain Services, Inc., 798 F.2d 1113 (7th Cir.1986), the appellate court itself made the determination of whether the purchaser was in good faith. Appellant argues that, “[T]he record is replete with the Committee’s objections that this was a contrived emergency sale and that adequate information concerning the transactions had not been given to creditors.” However, Appellant does not cite to a single instance where it made an objection. Significantly, Appellant’s Limited Objection to Debtors’ Motion for Order, filed December 12, 1988, is devoid of any allegations of bad faith on the part of NCNB Texas. Further, even if Appellant had put its current objections properly before the Bankruptcy Court, they are not of the nature that would put NCNB Texas’ good faith into issue as “good faith” is meant in § 363(m). The type of conduct of a purchaser which would destroy its good faith status in § 363(m) involves" }, { "docid": "6567721", "title": "", "text": "is stayed pending appeal did not require bankruptcy court to make explicit finding of “good faith” prior to authorization of sale). In Matter of Andy Frain Services, Inc., 798 F.2d 1113 (7th Cir.1986), the appellate court itself made the determination of whether the purchaser was in good faith. Appellant argues that, “[T]he record is replete with the Committee’s objections that this was a contrived emergency sale and that adequate information concerning the transactions had not been given to creditors.” However, Appellant does not cite to a single instance where it made an objection. Significantly, Appellant’s Limited Objection to Debtors’ Motion for Order, filed December 12, 1988, is devoid of any allegations of bad faith on the part of NCNB Texas. Further, even if Appellant had put its current objections properly before the Bankruptcy Court, they are not of the nature that would put NCNB Texas’ good faith into issue as “good faith” is meant in § 363(m). The type of conduct of a purchaser which would destroy its good faith status in § 363(m) involves fraud, collusion between the purchaser and other bidders of the trustee, or an attempt to take grossly unfair advantage of other bidders. Matter of Bleaufontaine, Inc., 634 F.2d at 1388, n. 7. See also In re Rock Industries Machinery Corp., 572 F.2d 1195 (7th Cir.1978) (requirement that purchaser act in good faith speaks to integrity of his conduct in course of sale proceedings); Matter of Andy Frain Services, Inc., 798 F.2d 1113 (7th Cir.1986). Rather, the conduct of NCNB Texas to which Appellant now objects and alleges indicates lack of good faith, occurred before the sale of the assets and does not include fraud, collusion, or an attempt to take grossly unfair advantage of other bidders. Therefore, if in fact a finding of the purchaser’s good faith is required for the sale to be insulated from reversal pursuant to § 363(m), the burden is on the party contesting the sale on the basis of lack of good faith to properly put the issue before the Bankruptcy Court for ruling. Appellant failed to do so, and" }, { "docid": "12115994", "title": "", "text": "a bankruptcy court has wide latitude to reconsider and vacate its own decisions. In re Bialac, 694 F.2d 625, 627 (9th Cir.1982). A pending appeal, however, divests a bankruptcy court of jurisdiction. Id.; In re Combined Metals Reduction Co., 557 F.2d 179, 200-01 (9th Cir. 1977). Because the bankruptcy court had no jurisdiction to stay its order and because no other court issued a stay, the bankruptcy court’s original refusal to issue a stay binds the parties. Therefore, if CWB acted in “good faith,” the issue is moot under section 364(e). The Bankruptcy Code does not provide a definition of good faith. In re Suchy, 786 F.2d 900, 902 (9th Cir.1985) (applying former Bankruptcy Rule 805 from which 11 U.S.C. § 363(m) is derived). Nonetheless, we have held in the context of foreclosure sales that to determine good faith we look to the integrity of an actor’s conduct during the proceedings. Id. (citing Exennium, 715 F.2d at 1404-05). Misconduct defeating good faith includes “ ‘fraud, collusion ..., or an attempt to take grossly unfair advantage of other[s].’ ” Id. (quoting Prichard v. Sherwood & Roberts, Inc. (In re Kings Inn, Ltd.), 37 B.R. 239, 243 (Bankr. 9th Cir.1984) (quoting In re Rock Industries Machinery Cory., 572 F.2d 1195, 1198 (7th Cir.1978))); see also In re Magwood, 785 F.2d 1077, 1081 n. 6 (D.C. Cir.1986). A creditor fails to act in good faith if it acts for an improper purpose. Matter of EDC Holding Co., 676 F.2d 945, 948 (7th Cir.1982). Knowledge of the illegality of a transaction also defeats good faith. Matter of Chicago, Milwaukee, St. Paul and Pacific R.R. Co., 799 F.2d 317, 330 (7th Cir.1986), cert, denied, — U.S. -, 107 S.Ct. 2460, 95 L.Ed.2d 869 (1987). Appellants assert as a general matter that CWB failed to act in good faith because it intended to secure an otherwise unsecured pre-petition claim, and because securing such a claim is improper under the Bankruptcy Code. Preliminarily, we note that, as CWB correctly maintains, courts have drawn opposite conclusions in determining whether cross-collateralization clauses are authorized under the Code. Compare, e.g.," }, { "docid": "6288295", "title": "", "text": "sale and ordered a new one. Taylor took an appeal from the District Court’s order to this court. On remand, meanwhile, the bankruptcy court held the new sale on June 25, 1979, where once again Lake bid highest at $350,000. The court accepted this bid, and sale was again confirmed by the bankruptcy judge. The property was conveyed to Lake by Receiver’s deed, dated September 12, 1979, at close of escrow on October 3, 1979. DISCUSSION I. MOOTNESS Our threshold inquiry relates to possible mootness of this appeal. This possibility arises because the disputed property has been conveyed by the Receiver to Lake in a grant deed dated September 12,1979. Taylor did not request a stay of the order of sale authorizing this conveyance, nor did he post a supersedeas bond. Bankruptcy Rule 805, made applicable to this Chapter XI proceeding by Bankruptcy Rule 11-62, contains the following provision: Unless an order approving a sale of property ... is stayed pending appeal, the sale to a good faith purchaser ... shall not be affected by the reversal or modification of such order on appeal, whether or not the purchaser ... knows of the pendency of the appeal. Circuits that have considered the matter agree that when this provision applies— when, in the absence of a stay of the order of sale, a sale to a “good faith purchaser” has been concluded — an appellate court cannot undo the sale. Because the court cannot provide meaningful relief to the appellant under those circumstances, any appeal of the order of sale thereby becomes moot. See, e. g., In re Bleaufontaine, Inc., 634 F.2d 1383 (5th Cir. 1981); In re Rock Industries Machinery Corp., 572 F.2d 1195 (7th Cir. 1978); In re National Homeowners Sales Service Corp., 554 F.2d 636 (4th Cir. 1977); Country Fairways, Inc. v. Mottaz, 539 F.2d 637 (7th Cir. 1976); In re Abingdon Realty Corp., 530 F.2d 588 (4th Cir. 1976). We have stated that although the Bankruptcy Rules apply by terms only to appeals made to the district court from the bankruptcy court, “practical necessities” counsel that the" }, { "docid": "6567719", "title": "", "text": "as moot); American Grain Association v. Lee-Vac, Ltd., 630 F.2d 245 (5th Cir.1980) (in absence of stay of lower court’s judgment, irreversible acts may be taken in reliance on judgment, making appeals court powerless to grant relief; under such circumstances appeal will be dismissed as moot). The basis for the foregoing rule is found in 11 U.S.C. § 363(m), which states: The reversal or modification on appeal of an authorization under subsection (b) or (c) of this section of a sale or lease of property does not affect the validity of a sale or lease under such authorization to an entity that purchased or leased such property in good faith, whether or not such entity knew of the pendency of the appeal, unless such authorization and such sale or lease were stayed pending appeal. That section recognizes that a sale such as that in the instant action should not be undone once consummated, absent lack of good faith on the part of the purchaser, and effectively denies Appellant any relief in this case. The December 16, 1988, order of the Bankruptcy Court approved the sale of the Services Companies to NCNB Texas pursuant to §§ 363(b) and (f) of the Bank ruptcy Code. The sale was consummated after the order was final and while no stay was in effect. Pursuant to § 363(m) and the authorities cited above, this Court is of the opinion that it can fashion no relief. Appellant raises two issues in response to Appellees’ mootness argument which the Court will address briefly. First, Appellant argues that a completed sale of property is not moot under § 363(m) unless the Bankruptcy Court makes a specific finding that the purchaser of such property acted in good faith. In support of this argument, Appellant cites In re Bleaufontaine Inc., 634 F.2d 1383 (5th Cir.1981). However, in that case, the Fifth Circuit did not require such a finding, and it is unclear whether such a finding is necessary. See e.g., In re Zinke, 97 B.R. 155 (E.D.N.Y.1989) (provision of Bankruptcy Code insulating authorized sale from appeal unless authorization of sale" }, { "docid": "18992858", "title": "", "text": "Air Assocs., 706 F.2d 301, 305 (10th Cir.1983); In re Rock Indus. Mach. Corp., 572 F.2d 1195, 1197 (7th Cir.1978). A. “The requirement that a purchaser act in good faith ... speaks to the integrity of his conduct in the course of the sale proceedings. Typically, the misconduct that would destroy a purchaser’s good faith status at a judicial sale involves fraud, collusion between the purchaser and other bidders or the trustee, or an attempt to take grossly unfair advantage of other bidders.” In re Rock Indus. Mach. Corp., 572 F.2d at 1198; see also Taylor v. Lake (In re Cada Invs.), 664 F.2d 1158, 1162 (9th Cir.1981) (“Courts have generally appeared willing to set aside confirmed sales that were ‘tinged with fraud, error or similar defects which would in equity affect the validity of any private transaction.’ ”). In the present case, the bankruptcy court did not make an explicit finding of “good faith” as to ADC’s behavior in the course of the sale proceedings. ADC and Abbotts argue, however, that the court implicitly made such a finding, in that “it simply would not have approved the sale to ADC if it had thought otherwise.” Alternatively, they seek to rely upon the district court’s conclusion that NFO and Cumberland “have not shown a lack of good faith on the part of ADC so as to justify their failure to seek a stay.” In re Abbotts Dairies, et al., No 84-5118, slip op. at 2 n. 1. Under the circumstances, we find both of these arguments unpersuasive. First, we reject the claim that the bankruptcy court made an “implicit” finding of good faith. The factual findings upon which ADC and Abbotts base this assertion go only to the need to act immediately so as to avoid any diminution in the value of Abbotts’ trademarks and other assets. NFO’s and Cumberland’s assertion of collusion, on the other hand, concerns, inter alia, the claim that the “emergency” justifying the immediate sale of Abbotts was itself contrived or orchestrated by ADC and Abbotts. For example, they claim that — in exchange for a" }, { "docid": "18992857", "title": "", "text": "not necessary, however, because the present record will not, as a matter of law, support a finding that ADC purchased “in good faith”; alternatively, they argue that we should remand the matter to permit them to develop a record on the controlling good faith issues. Because the question of whether ADC was a good faith purchaser requires the determination of an ultimate fact, Greylock Glen Corp. v. Community Sav. Bank, 656 F.2d 1, 3 (1st Cir.1981), our standard of review is mixed; we exercise plenary review of the legal standard applied by the district and bankruptcy courts, but review the latter court’s findings of fact on a clearly erroneous standard, Universal Minerals v. C.A. Hughes & Co., 669 F.2d 98, 103 (3d Cir.1981); Fed.R.Bankr.P. 8013. Unfortunately, neither the Bankruptcy Code nor the Bankruptcy Rules attempts to define “good faith.” Courts applying section 363(m) (and its predecessor, Fed.R. Bankr.P. 805) have, therefore, turned to traditional equitable principles, holding that the phrase encompasses one who purchases in “good faith” and for “value.” See, e.g., In re Bel Air Assocs., 706 F.2d 301, 305 (10th Cir.1983); In re Rock Indus. Mach. Corp., 572 F.2d 1195, 1197 (7th Cir.1978). A. “The requirement that a purchaser act in good faith ... speaks to the integrity of his conduct in the course of the sale proceedings. Typically, the misconduct that would destroy a purchaser’s good faith status at a judicial sale involves fraud, collusion between the purchaser and other bidders or the trustee, or an attempt to take grossly unfair advantage of other bidders.” In re Rock Indus. Mach. Corp., 572 F.2d at 1198; see also Taylor v. Lake (In re Cada Invs.), 664 F.2d 1158, 1162 (9th Cir.1981) (“Courts have generally appeared willing to set aside confirmed sales that were ‘tinged with fraud, error or similar defects which would in equity affect the validity of any private transaction.’ ”). In the present case, the bankruptcy court did not make an explicit finding of “good faith” as to ADC’s behavior in the course of the sale proceedings. ADC and Abbotts argue, however, that the court implicitly" }, { "docid": "8341373", "title": "", "text": "Movant is a good faith purchaser.. Neither the Bankruptcy Code nor the Rules provides any definition of “good faith”. Our Circuit Court, and others, have adopted the traditional equitable principles which hold that the term includes anyone who purchases in “good faith” and for “value”. Miami Center Limited Partnership v. Bank of New York, 838 F.2d 1547 (11th Cir.1988) cert. den’d, — U.S. —, 109 S.Ct. 69, 102 L.Ed.2d 46 (1988); In re Abbotts Dairies of Pennsylvania, Inc., 788 F.2d 143 (3rd Cir.1986); In re Bel Air Associates, Ltd., 706 F.2d 301 (10th Cir.1983); In re Rock Industries Machinery Corp., 572 F.2d 1195 (7th Cir.1978). “The requirement that a purchaser act in good faith ... speaks to the integrity of his conduct in the course of the sale proceedings. Typically, the misconduct that would destroy a purchaser’s good faith status at a judicial sale involves fraud, collusion between the purchaser and other bidders or the trustee, or an attempt to take grossly unfair advantage of other bidders.” In re Abbotts Dairies, supra; In re Rock Industries, supra. Respondent has alleged that Movant’s good faith status is jeopardized by its status as an insider and a party to the appeal of the Order confirming the Plan of Reorganization. Respondent has provided no case law to support its contention and we know of none. Those cases which do discuss a purchaser’s knowledge of adverse claims, as said knowledge affects “good faith” status, have said that knowledge of claims which have been asserted in an appeal presently pending, in no way deprives a purchaser of “good faith” status. Miami Center Limited Partnership, supra; In re Dutch Inn of Orlando, Ltd., 614 F.2d 504 (5th Cir.1980). In this case, it is the very status of purchaser which made Movant a party to the appeal. Respondent’s use of circular logic cannot be permitted to carry the day. Nor has Respondent provided this Court with any case stating that an insider cannot be a good faith purchaser. There has been no evidence or allegation of fraud or collusion or attempts at unfair advantage. A Plan of" }, { "docid": "11717866", "title": "", "text": "held “that when a bankruptcy court authorizes a sale of assets pursuant to Section 363(b)(1), it is required to make a finding with respect to the ‘good faith’ of the purchaser.” In re Abbotts Dairies Of Pennsylvania, Inc., 788 F.2d 143,149-50 (3rd Cir.1986). In the analogous situation of a § 364 borrowing order, the Sixth Circuit has cited Abbotts Dairies approvingly. New York Life Ins. Co. v. Revco, D.S., Inc. (In re Revco D.S., Inc.), 901 F.2d 1359, 1366 (6th Cir.1990) (holding that “an implicit finding of ‘good faith’ in a § 364(e) context is insufficient, and that ‘good faith’ under that section should not be presumed”). The requirement that a purchaser act in good faith ... speaks to the integrity of his conduct in the course of the sale proceedings. Typically, the misconduct that would destroy a purchaser’s good faith status at a judicial sale involves fraud, collusion between the purchaser and other bidders or the trustee, or an attempt to take grossly unfair advantage of other bidders. In re Abbotts Dairies, 788 F.2d at 147, quoting In re Rock Indus. Mach. Corp., 572 F.2d 1195, 1198 (7th Cir.1978). In this contested matter, the facts and circumstances mandate a finding that there exists collusion between the Debtor , through Appel, and Eco as prospective purchaser, through Sanborn and/or Appel. There also exists evidence of an attempt to take unfair advantage of other prospective bidders. Lastly, there exists some evidence of material nondisclosure and perhaps silent fraud. (See discussion in Part IV.B.2. supra.) Based upon the totality of the record, the proposed sale by the Debtor to Eco smacks of a “sweetheart deal” or, as argued during closing by Guardian’s counsel, the “deal is fixed”. A number of facts abundantly support such a conclusion. The proposed sale is not an auction sale which permits competitive bidding. Basically, the Debtor seeks approval of the Amended License Agreement on a “take it or leave it” basis. However, even assuming that an auction sale occurred, as was requested by the Debtor as a form of alternative relief, under the facts, no meaningful competitive" }, { "docid": "6567722", "title": "", "text": "fraud, collusion between the purchaser and other bidders of the trustee, or an attempt to take grossly unfair advantage of other bidders. Matter of Bleaufontaine, Inc., 634 F.2d at 1388, n. 7. See also In re Rock Industries Machinery Corp., 572 F.2d 1195 (7th Cir.1978) (requirement that purchaser act in good faith speaks to integrity of his conduct in course of sale proceedings); Matter of Andy Frain Services, Inc., 798 F.2d 1113 (7th Cir.1986). Rather, the conduct of NCNB Texas to which Appellant now objects and alleges indicates lack of good faith, occurred before the sale of the assets and does not include fraud, collusion, or an attempt to take grossly unfair advantage of other bidders. Therefore, if in fact a finding of the purchaser’s good faith is required for the sale to be insulated from reversal pursuant to § 363(m), the burden is on the party contesting the sale on the basis of lack of good faith to properly put the issue before the Bankruptcy Court for ruling. Appellant failed to do so, and cannot be heard on appeal to complain about a lack of finding by the Bankruptcy Court below. Second, Appellant argues that even if the sale of assets is not subject to reversal in the absence of a stay pending appeal, the “corporate cleanup” and compromise of claims authorized by the December 16, 1988, order are not protected by § 863(m). This argument must also fail. The compromise of the Appellees’ claims against NCNB Texas and the “corporate cleanup” were terms of the Purchase Agreement of which the Bankruptcy Court approved. The sale of the Services Companies cannot now be separated from the terms on which the sale was made. The court in Matter of Andy Frain Services, Inc., 798 F.2d 1113 (7th Cir.1986) was presented with a similar argument. In that case, a term included in the purchase agreement for the debtor’s assets was the compromise of various claims among interrelated entities. The appellant failed to obtain a stay of the order authorizing the sale pending appeal. On appeal, the appellant argued that even if" }, { "docid": "17606952", "title": "", "text": "bars. We reject this attempted end-run around § 363(m). Finally, appellants maintain § 363(m) does not apply because Rolling Stone was not a good faith purchaser. Lack of good faith is shown by misconduct surrounding the sale. Typically, the requisite misconduct necessary to establish a lack of good faith involves “fraud, collusion between the purchaser and other bidders or the trustee, or an attempt to take grossly unfair advantage of other bidders.” In re Burgess, 246 B.R. 352, 356 (8th Cir.BAP 2000) (quoting In re Rock Indus. Mach. Corp., 572 F.2d 1195, 1198 (7th Cir.1978)). Appellants have not alleged fraud, collusion, or “an attempt to take grossly unfair advantage of other bidders.” Id. Appellants, citing In re Willemain, 764 F.2d 1019, 1023 (4th Cir.1985), claim Rolling Stone was not a good faith purchaser because it knew Sears Cattle owned an interest in Tract 1 at the time it signed the purchase agreement and knew of Sears Cattle’s, Robert’s, and Korley’s adverse claims when the sale closed. See In re Willemain, 764 F.2d at 1023 (defining a good faith purchaser as “ ‘one who purchases the assets for value, in good faith, and without notice of adverse claims’ ” (quoting In re Rock Indus. Mach. Corp., 572 F.2d at 1197)). Some tension exists between the good faith definitions in Burgess and in Willemain. But we need not choose a definition now because appellants’ argument fails under either definition. Rolling Stone’s knowledge, at the time it signed the purchase agreement, of Sears Cattle’s interest in Tract 1 does not make Rolling Stone’s actions in bad faith. Any argument it does is rejected because Sears Cattle signed the purchase agreement, in which Sears Cattle agreed to convey its interest in Tract 1 to Rolling Stone. In addition, § 363(m) expressly applies “whether or not [the purchaser] knew of the pendency of the appeal” of the trustee’s authorization to sell the property. 11 U.S.C. § 363(m). Rolling Stone’s knowledge at the time of closing that appellants were appealing the sale order does not affect the applicability of § 363(m). See In re Vanguard Oil" }, { "docid": "10220163", "title": "", "text": "little experience in valuing minority limited partnership interests. Moreover, Hampshire’s $100,000 offer was no less valuable than Israelson’s contingent $200,-000 offer, which was subject to successful litigation of the transferability of the interest. In addition, the bankruptcy court’s express finding that the $100,000 price was “not unreasonable,” a finding that is not clearly erroneous, demonstrates that Hampshire indeed gave value for the interest. Second, there is no indication that Hampshire did not act in good faith during the course of the sales proceedings. “Typically, the misconduct that would destroy a purchaser’s good faith status at a judicial sale involves fraud, collusion between the purchaser and other bidders or the trustee, or an attempt to take grossly unfair advantage of other bidders.” In Re Rock Industries Machinery Corp., 572 F.2d at 1198. In the case sub judice, Hampshire was the only bidder for the interest until Israelson’s offer was made shortly before the bankruptcy hearing took place. It is thus apparent that Hampshire neither engaged in collusion with nor took grossly unfair advantage of other bidders. In addition, the record reveals no fraud on Hampshire’s part. Moreover, the district court found that Hampshire had acted in good faith: again, that finding is not clearly erroneous. That Willemain’s general partners in Chapel Associates also have an ownership interest in Hampshire does not, without more, amount to a lack of good faith in connection with the sales proceedings. Finally, as the language of section 363(m) reveals, Hampshire’s knowledge of the pendency of Willemain’s appeal does not deprive Hampshire of good faith purchaser status on the basis of knowledge of adverse claims. In Re Rock Industries Machinery Corp., 572 F.2d at 1199. Finding as we do that Hampshire was a good faith purchaser under § 363(m) of the Bankruptcy Code and that Willemain failed to secure a stay pending appeal, we are compelled to find that Willemain’s appeal challenging the bankruptcy court’s order approving the sale to Hampshire is moot. In Re Vetter Corp., 724 F.2d 52, 54-56 (7th Cir.1983); In Re Bel Air Associates, Ltd., 706 F.2d at 306; In Re National Homeowners" }, { "docid": "18591216", "title": "", "text": "is constitutional; whether the 1984 Act authorizes the exercise of the contempt power by bankruptcy judges; whether such an authorization would be constitutional; and whether the civil contempt power is an essential judicial attribute for Article III purposes. . The show cause order provides that it was entered \"[u]pon consideration of the emergency motion by Florence Hicks for permission and right to enter property to provide maintenance.” . At this time, Hicks was once again seeking relief from the automatic stay of execution. The bankruptcy court’s show cause orders seem to reflect the court’s exasperation at Hicks' unrelenting efforts to lift the stay. . 11 U.S.C. § 363(m) (1982). . In re Bel Air Assocs., Ltd., 706 F.2d 301, 305 (10th Cir.1983). . The misconduct which would destroy a buyer’s \"good faith purchaser” status at a judicial sale ordinarily \"involves fraud, collusion between the purchaser and other bidders or the trustee, or an attempt to take grossly unfair advantage of other bidders.” In re Bel Air Assocs., Ltd., 706 F.2d at 305 n. 11 (quoting In re Rock Indus. Machinery Corp., 572 F.2d 1195, 1198 (7th Cir.1978)); see also In re Exennium, Inc., 715 F.2d 1401, 1404-05 (9th Cir.1983) (\"Lack of good faith is generally determined by fraudulent conduct during the sale proceedings.\"). . See In re Vetter Corp., 724 F.2d 52, 56 (7th Cir.1983) (“[I]f a party appeals a bankruptcy judge’s order, authorizing and confirming a sale to a good faith purchaser, the order must be stayed pending appeal, otherwise the issue becomes moot on appeal.”); In re Exennium, Inc., 715 F.2d at 1404 (\"If appeal is sought without a stay, the courts cannot grant relief because they cannot overturn the sale.”). . 28 U.S.C. § 1481 (1982). Section 1481 was in effect when the bankruptcy judge attempted to exercise the contempt power in this case. . There are, however, some indications that the citation was for criminal contempt. In the contempt order itself, for example, the bankruptcy court found that Hicks had intentionally violated the December 7, 1983 order. Such a finding is not required for a civil" } ]

[ { "docid": "19538461", "title": "", "text": "material merely because the Government designates compliance with a particular statutory, regulatory, or contractual requirement as a condition of payment. Nor is it sufficient for a finding of materiality that the Government would have the option to decline to pay if it knew of the defendant's noncompliance. Materiality, in addition, cannot be found where noncompliance is minor or insubstantial. See United States ex rel. Marcus v. Hess, 317 U.S. 537, 543, 63 S.Ct. 379, 87 L.Ed. 443 (1943) (contractors' misrepresentation that they satisfied a non-collusive bidding requirement for federal program contracts violated the False Claims Act because \"[t]he government's money would never have been placed in the joint fund for payment to respondents had its agents known the bids were collusive\"); see also Junius Constr., 257 N.Y., at 400, 178 N.E., at 674 (an undisclosed fact was material because \"[n]o one can say with reason that the plaintiff would have signed this contract if informed of the likelihood\" of the undisclosed fact). In sum, when evaluating materiality under the False Claims Act, the Government's decision to expressly identify a provision as a condition of payment is relevant, but not automatically dispositive. Likewise, proof of materiality can include, but is not necessarily limited to, evidence that the defendant knows that the Government consistently refuses to pay claims in the mine run of cases based on noncompliance with the particular statutory, regulatory, or contractual requirement. Conversely, if the Government pays a particular claim in full despite its actual knowledge that certain requirements were violated, that is very strong evidence that those requirements are not material. Or, if the Government regularly pays a particular type of claim in full despite actual knowledge that certain requirements were violated, and has signaled no change in position, that is strong evidence that the requirements are not material. These rules lead us to disagree with the Government's and First Circuit's view of materiality: that any statutory, regulatory, or contractual violation is material so long as the defendant knows that the Government would be entitled to refuse payment were it aware of the violation. See Brief for United" } ]

[ { "docid": "2972225", "title": "", "text": "31 U.S.C. § 3729(b)(1). They allege Gilead took internal actions perpetuating its fraud: altering test results, batch numbers, and Inventory Control Numbers, and representing that nonapproved FTC came from approved facilities. They also allege Gilead established practices to deceive the government, and repeatedly took actions to hide its fraud. In other words, relators allege Gilead provided statements to the government that were “intentional, palpable lie[s],” made with “knowledge of the falsity and with intent to deceive.” Hopper, 91 F.3d at 4265, 1267. The scienter element is adequately pled. 3. Materiality Under the False Claims Act, a falsehood is material if it has “a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property.” 31 U.S.C. § 3729(b)(4). In Escobar, the Supreme Court clarified that “[t]he materiality standard is demanding.” 136 S.Ct. at 2003. “A misrepresentation cannot be deemed material merely because the Government designates compliance with a particular statutory, regulatory, or contractual requirement of payment. Nor is it sufficient for a finding of materiality that the Government would have the option to decline to pay if it knew of the defendant’s noncompliance.” Id. Materiality also “cannot be found where noncompliance is minor or insubstantial.” Id. Proof of materiality can include whether “the Government pays a particular claim in full despite its actual knowledge that certain requirements were violated.” Id. FDA approval is the “the sine qua non” of federal funding here. Hendow, 461 F.3d at 1176. Eligibility for federal funding and reimbursement is conditioned on FDA approval under Medicaid, 42 U.S.C. § 1396r-8 (limited to “covered outpatient drug,” which is defined as “approved for safety and effectiveness as a prescription drug” by the FDA), Medicare, 42 U.S.C. § 1395w-102e (similar), and the direct payment programs identified by relators,. 48 C.F.R. § 46.408 (assigning FDA responsibility for ensuring quality of drugs purchased by agencies). All of these payment programs look to FDA-approval as a determination of the “safety and effectiveness” of the drugs at issue. It is undisputed that at all times relevant, the drugs at issue were FDA-approved, and that the government continues" }, { "docid": "9287746", "title": "", "text": "1999-2000. Because this kind of \"silent fraud\" is an exception to the rule, the Court limited its application to cases where a person \"state[s] the truth so far as it goes\" but knows the statement to be \"materially misleading because of his failure to state additional or qualifying matter.\" Escobar , 136 S.Ct. at 1999-2000 (quoting Restatement, § 529). Under this rule, a \"half-truth may be as misleading as a statement wholly false\" and is equally tortious. Restatement, § 529; Escobar , 136 S.Ct. at 2000. The Court was also painfully clear that not all regulatory violations are material. The government frequently requires contractors to \"aver their compliance\" with all relevant regulations, and the Court was unwilling to embrace the \"extraordinarily expansive\" liability that would exist if \"failing to mention noncompliance with any of those requirements\" would be fraudulent. Escobar , 136 S.Ct. at 2004. This statement was not mere dicta-it was in direct response to the United States' argument that every undisclosed regulatory violation would trigger FCA liability. See id. Instead, the fundamental question here is whether the government agents on the ground would have acted differently if they knew of the omitted fact. Stated differently, Prather must show that the government justifiably relied on the nondisclosure, assuming that if something had been out of place, Brookdale would have said so. See Restatement (Second) of Torts §§ 537 - 38 (observing that materiality is inextricably rooted in the concept of justifiable reliance); 31 U.S.C. § 3729(b)(4) (stating that a fact is material if it has \"a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property\"). Although this broad standard is clear, applying it to the particulars of this case has proven difficult for everyone involved. When pressed at oral argument, Prather was unable to provide an answer to this question, and the United States was unwilling to do so. In my mind, the majority opinion is equally unenlightening on this issue. Before explaining why Prather has failed to plead materiality, then, I attempt to put more flesh on the skeleton provided" }, { "docid": "11368345", "title": "", "text": "(“The False Claims Act ... focuses on the submission of a claim, and does not concern itself with whether or to what extent there exists a menacing underlying scheme.”); United States ex rel. Hendow v. Univ. of Phx., 461 F.3d 1166, 1173 (9th Cir. 2006) (“[F]or a false statement or course of action to be actionable ..., it is necessary that it involve an actual claim .... ”). As we have previously stated, “an actual false claim is the sine qua non of an FCA violation.” Cafasso, 637 F.3d at 1055 (citation and alterations omitted). Finally, “[a] misrepresentation about compliance with a statutory, regulatory, or contractual requirement must be material to the Government’s payment decision in order to be actionable under the False Claims Act.” Escobar, 136 S.Ct. at 1996. Courts can properly dismiss an FCA claim on summary judgment based on a claimant’s failure to meet the rigorous standard for materiality under the FCA. Id. at 2004 n.6. In Escobar, a unanimous Supreme Court clarified how rigorously the FCA’s materiality requirement must be enforced: The materiality standard is demanding. The False Claims Act is not “an all-purpose antifraud statute” or a vehicle for punishing garden-variety breaches of contract or regulatory violations. A misrepresentation cannot be deemed material merely because the Government designates compliance with a particular statutory, regulatory, or contractual requirement as a condition of payment. Nor is it sufficient for a finding of materiality that the Government would have the option to decline to pay if it knew of the defendant’s noncompliance. Materiality, in addition, cannot be found where noncompliance is minor or insubstantial. Id. at 2003 (citation omitted); see also SAIC, 626 F.3d at 1271 (“By enforcing [the materiality] requirement rigorously, courts will ensure that government contractors will not face ‘onerous and unforeseen FCA liability’ as the result of noncompliance with any of ‘potentially hundreds of legal requirements’ established by contract. Payment requests by a contractor who has violated minor contractual provisions that are merely ancillary to the parties’ bargain are neither false nor fraudulent.”). We think Kelly’s theory of liability falters on these shoals. C Kelly" }, { "docid": "11368346", "title": "", "text": "The materiality standard is demanding. The False Claims Act is not “an all-purpose antifraud statute” or a vehicle for punishing garden-variety breaches of contract or regulatory violations. A misrepresentation cannot be deemed material merely because the Government designates compliance with a particular statutory, regulatory, or contractual requirement as a condition of payment. Nor is it sufficient for a finding of materiality that the Government would have the option to decline to pay if it knew of the defendant’s noncompliance. Materiality, in addition, cannot be found where noncompliance is minor or insubstantial. Id. at 2003 (citation omitted); see also SAIC, 626 F.3d at 1271 (“By enforcing [the materiality] requirement rigorously, courts will ensure that government contractors will not face ‘onerous and unforeseen FCA liability’ as the result of noncompliance with any of ‘potentially hundreds of legal requirements’ established by contract. Payment requests by a contractor who has violated minor contractual provisions that are merely ancillary to the parties’ bargain are neither false nor fraudulent.”). We think Kelly’s theory of liability falters on these shoals. C Kelly nonetheless argues that Ser-co’s omissions were material because the government relied on Serco’s reports to manage the AWS Project and its budget. Kelly states that, “[i]f Serco had disclossed [sic] that it did not have a compliant EVMS or that its EVM reports were fraudulent, it is doubtful Serco’s payment vouchers would have been paid.” In Esco-bar, the Supreme Court rejected a view that the test for materiality “is whether the person knew that the government could lawfully withhold payment.” Escobar, 136 S.Ct. at 2004 (citation omitted). The Supreme Court held that “[t]he False Claims Act does not adopt such an extraordinarily expansive view of liability,” and evidence that the government “would be entitled to refuse payment were it aware of the violation” is insufficient by itself to support a finding that the violation is material to the government’s payment decision. Id. Likewise, here, the possibility that the government would be entitled to refuse payment if it were aware of Serco’s alleged violations is insufficient by itself to support a finding of materiality. Further, the" }, { "docid": "21837912", "title": "", "text": "the Government regularly pays a particular type of claim in full despite actual knowledge that certain requirements were violated, and has signaled no change in position, that is strong evidence that the requirements are not material. Id. at 2003-04 (internal citations and footnote omitted). In sum, in considering the question of materiality, courts should consider, but are not bound by, the questions of (1) whether the statute or regulation at issue has been expressly designated by the government as a condition of payment; (2) whether the government has consistently refused to pay' claims based on non-compliance with the particular statute or regulation; and (3) conversely, whether the government has regularly paid claims despite knowledge of technical violations, 'without signaling a change in position. Id. Courts are to apply a holistic approach in determining materiality; no one factor is necessarily determinative. Id. at 2001. Materiality “look[s] to the effect on the likely or actual behavior of the recipient of the alleged misrepresentation.” Id. at 2002-03 (citing Williston on Contracts. § 69:12 (4th ed. 2003) and the Restatement (Second) of Torts, § 538). Materiality is more likely to be found where the information at issue goes “to the very essence of the bargain,” id. at 2003 n.5 (quoting Junius Constr. Co. v. Cohen, 257 N.Y. 393, 178 N.E. 672, 673 (1931)). Materiality “cannot be found where noncompliance is minor or insubstantial.” Id. “Nor is it sufficient for a finding of materiality that the Government would have the option to decline to pay if it knew of the defendant’s noncompliance.” Id. Moreover, the Court expressly affirmed that the question of materiality is not “too fact intensive” to be addressed in the context of a motion to dismiss. Id. at 2004 n.6 (“The standard for materiality that we have outlined is a familiar and rigorous one. And False Claims Act plaintiffs must also plead their claims with plausibility and particularity under Federal Rules of Civil Procedure 8 and 9(b) by, for instance, pleading facts to support, allegations of materiality.”). The Escobar Court also touched upon the FCA’s scienter requirement, noting that the Act imposes" }, { "docid": "5600153", "title": "", "text": "statutory, regulatory, or contractual requirement.” Id. at 1995. The Court observed that Congress had not defined “false” or “fraudulent” for purpose • of the FCA. Nevertheless, the Court continued, “[i]t is a settled principle of interpretation that, absent other indication, Congress intends to incorporate the.well-settled meaning of the common-law terms it uses.” Id. at 1999 (quoting Sekhar v. United States, — U.S. -, 133 S.Ct. 2720, 2724, 186 L.Ed.2d 794 (2013)) (alteration in' original). “Because common-law fraud has long encompassed certain misrepresentations by omission, ‘false or fraudulent.claims’ include more than just claims containing express falsehoods.” Id. Turning to the type of omission that could trigger liability, the Court rejected Universal Health Services’ argument that the nondisclosure had to involve program-requirements that were “expressly designated as conditions of payment.” Id. at 1996. “What matters is not thé label the Government attaches to a requirement, but whether the defendant knowingly violated a requirement that the deféndant knows is material to the Government’s payment decision.” Id. (emphasis added). The Court explained that the “term ‘material’ means having a natural tendency to influence,' or be capable of influencing, the payment or receipt of money or property” and had “common-law antecedents.” Id. at 2002 (quoting Neder v. United States, 527 U.S. 1, 16, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)). Regardless of its origin, however, “[u]nder any understanding of the concept, materiality ‘look[s] to the effect on the likely or actual behavior of'the recipient of the alleged misrepresentation.’” Id. at 2002 (quoting 26 Richard A. Lord, Willi-ston on Contracts § 69:12 (4th ed. 2003)) (second alteration in original). Given this “demanding” standard, id. at 2003, the Court concluded that the label attached to a payment requirement “is relevant to but not dispositive of the materiality inquiry,” id. at 2001. Instead, the Court explained that- proof of materiality includes, but is not limited to, “evidence that the defendant knows that the Government consistently refuses to pay claims in the mine run of cases based on noncompliance with the particular statutory, regulatory, or contractual requirement.” Id. at 2003., However, - if the Government pays a particular claim" }, { "docid": "12015848", "title": "", "text": "whether [Rela-tors] have sufficiently pleaded a False Claims Act violation.” Id. at 2004. E. The Materiality Test The language that the Supreme Court used in Escobar II makes clear that courts are to conduct a holistic approach to determining materiality in connection with a payment decision, with no one factor being necessarily dispositive. As the Court observed, “materiality cannot rest ‘on a single fact or occurrence as always determinative.’ ” Escobar II, 136 S.Ct. at 2001 (quoting Matrixx Initiatives, Inc. v. Siracusano, 563 U.S. 27, 39, 131 S.Ct. 1309, 179 L.Ed.2d 398 (2011)). Because the materiality requirement in the Act descends from “common-law antecedents,” id. at 2002 (quoting Kungys v. United States, 485 U.S. 759, 769, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988)), under both the FCA and under the common law, materiality “look[s] to the effect on the likely or actual behavior of the recipient of the alleged misrepresentation.” Id at 2002-03 (citing Williston on Contracts § 69:12 (4th ed. 2003) and the Restatement (Second) of Torts, § 538). Materiality is more likely to be found where the information at issue goes “to the very essence of the bargain,” Escobar II, 136 S.Ct. at 2003, n. 5 (quoting Junius Constr. Co. v. Cohen, 257 N.Y. 393, 400, 178 N.E. 672 (1931) (Cardozo, C.J.)) “The materiality standard is demanding,” as the False Claims Act is not “‘an all-purpose antifraud statute’ or a vehicle for punishing garden-variety breaches of contract or regulatory violations.”Id. at 2003 (internal citation omitted). Materiality “cannot be found where noncompliance is minor or insubstantial.” Id. “Nor is it sufficient for a finding of materiality that the Government would have the option to decline to pay if it knew of the defendant’s noncompliance.” Id. The Court then laid out several specific factors that might contribute to determining materiality: [p]roof of materiality can include, but is not necessarily limited to, evidence that the defendant knows .that the Government consistently refuses to pay claims in the mine run of cases based on noncompliance with the particular statutory, regulatory, or contractual requirement. Conversely, if the Government pays a particular claim in" }, { "docid": "9005491", "title": "", "text": "en banc, interprets Escobar differently. On this record, a reasonable trier of fact could conclude that Defendant's actions meet the Escobar requirements for falsity. In the Federal Stafford Loan School Certification form, Defendant specifically represented that the student applying for federal financial aid is an \"eligible borrower\" and is \"accepted for enrollment in an eligible program.\" Because Defendant failed to disclose its noncompliance with the incentive compensation ban, those representations could be considered \"misleading half-truths.\" That is sufficient evidence to create a genuine issue of material fact and, therefore, to defeat summary judgment. C. Materiality Under the False Claims Act, \"the term 'material' means having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property.\" 31 U.S.C. § 3729(b)(4). In Hendow , we held that the relators had alleged adequately that the University of Phoenix \"engaged in statements or courses of conduct that were material to the government's decision with regard to funding.\" 461 F.3d at 1177. In concluding that the alleged violations of the incentive compensation ban were material, we relied on the fact that the statute, regulation, and program participation agreement all explicitly conditioned payment on compliance with the incentive compensation ban. Id. We did not explicitly consider any other factors in determining that the relators properly pleaded the materiality of the university's violations. Id. We noted, with regard to materiality, that \"the question is merely whether the false certification ... was relevant to the government's decision to confer a benefit.\" Id. at 1173. In Escobar , the Supreme Court elaborated on what can and cannot establish materiality in the context of the False Claims Act. The Court clarified that \"[w]hether a provision is labeled a condition of payment is relevant to but not dispositive of the materiality inquiry.\" Escobar , 136 S.Ct. at 2001 (emphases added). Therefore, \"even when a requirement is expressly designated a condition of payment, not every violation of such a requirement gives rise to liability.\" Id. at 1996. Instead, the Court explained, \"materiality looks to the effect on the likely or actual behavior of the" }, { "docid": "5600154", "title": "", "text": "natural tendency to influence,' or be capable of influencing, the payment or receipt of money or property” and had “common-law antecedents.” Id. at 2002 (quoting Neder v. United States, 527 U.S. 1, 16, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)). Regardless of its origin, however, “[u]nder any understanding of the concept, materiality ‘look[s] to the effect on the likely or actual behavior of'the recipient of the alleged misrepresentation.’” Id. at 2002 (quoting 26 Richard A. Lord, Willi-ston on Contracts § 69:12 (4th ed. 2003)) (second alteration in original). Given this “demanding” standard, id. at 2003, the Court concluded that the label attached to a payment requirement “is relevant to but not dispositive of the materiality inquiry,” id. at 2001. Instead, the Court explained that- proof of materiality includes, but is not limited to, “evidence that the defendant knows that the Government consistently refuses to pay claims in the mine run of cases based on noncompliance with the particular statutory, regulatory, or contractual requirement.” Id. at 2003., However, - if the Government pays a particular claim in full despite its actual knowledge that certain requirements were violated, that is very strong evidence that those requirements are not material. Or, if the Government regularly pays a particular type of claim in full despite actual knowledge that certain requirements were violated, and has signaled no change in position, that is strong evidence that the requirements are not material. Id. at 2003-04. Because the Court’s interpretation of the statutory requirements differed from that, applied by the First Circuit, it vacated the First Circuit’s decision and remanded for further proceedings. 2. With this understanding of Escobar, we consider whether Mr. Luce’s misrepresentations on the V-forms meet the materiality standard. Here, 24 C.F.R. § 202.5(j)(2) affirmatively prohibits program participation by loan correspondents who have had a principal “indicted for, or ... convicted of, an offense” bearing on the loan correspondent’s integrity. To enforce this prohibition, HUD requires an annual certification of compliance with this requirement so that the loan originator can continue its business- relationship with the Government. The certification on the V-form concerns an “eligibility" }, { "docid": "9287718", "title": "", "text": "regulatory, or contractual requirement must be material to the Government's payment decision in order to be actionable under the False Claims Act.\" Escobar , 136 S.Ct. at 2002. The Act defines \"material\" as \"having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property.\" 31 U.S.C. § 3729(b)(4). In Escobar , the Supreme Court clarified this materiality requirement and emphasized that the \"standard is demanding.\" 136 S.Ct. at 2003. \"[M]ateriality 'look[s] to the effect on the likely or actual behavior of the recipient of the alleged misrepresentation.' \" Escobar , 136 S.Ct. at 2002 (second alteration in original) (quoting 26 SAMUEL WILLISTON & RICHARD A. LORD, A TREATISE ON THE LAW OF CONTRACTS § 69:12 (4th ed. 2003) ). Something is material if a reasonable person \"would attach importance to [it] in determining his choice of action in the transaction\" or \"if the defendant knew or had reason to know that the recipient of the representation attaches importance to the specific matter 'in determining his choice of action,' even though a reasonable person would not.\" Id. at 2002-03 (alteration in original) (quoting RESTATEMENT (SECOND) OF TORTS § 538 ( AM. LAW INST. 1977) ). The analysis of materiality is \"holistic.\" United States ex rel. Escobar v. Universal Health Servs. , Inc. , 842 F.3d 103, 109 (1st Cir. 2016). Relevant factors include: (1) \"the Government's decision to expressly identify a provision as a condition of payment\"; (2) whether \"the Government consistently refuses to pay claims in the mine run of cases based on noncompliance with the particular statutory, regulatory, or contractual requirement\" or if, with actual knowledge of the non-compliance, it consistently pays such claims and there is no indication that its practice will change; and (3) whether the \"noncompliance is minor or insubstantial\" or if it goes \"to the very essence of the bargain.\" Escobar , 136 S.Ct. at 2003 & n.5. None of these considerations is dispositive alone, nor is the list exclusive. Id. at 2001-04. 1. Express Condition of Payment \"A misrepresentation cannot be deemed material merely because the" }, { "docid": "21837909", "title": "", "text": "taken Escobar into account in drafting the Second Amended Complaint, the court permitted her to amend her pleading again to satisfy Escobaos requirements. She has now done so, but Brookdale maintains in its present motion that, even as amended for the third time, the relator’s allegations are insufficient to state a claim under the standards imposed by Escobar for pleading materiality and scienter. More specifically, Brookdale argues under Escobar that the alleged failure to comply with an applicable statute or regulation can give rise to liability under the FCA only if “rigorous” materiality and scienter requirements are satisfied. Escobar, 136 S.Ct. at 2002. Brookdale asserts that Prather has failed to adequately allege facts showing that the timing requirements in 42 C.F.R. 424.22(a)(2) are material to Medicare’s decision to pay claims or that Brookdale had actual or constructive knowledge that the timing requirements are material, for purposes of the FCA’s scienter requirement. Prather insists, to the contrary, that she has adequately alleged facts supporting both materiality and scienter. A. Escobar In Escobar, the Supreme Court confirmed that the implied-false-certification theory can be a basis for liability under the FCA under certain circumstances. 136 S.Ct. at 1995. Specifically, the Court held that, “[w]hen ... a defendant makes representations in submitting a claim but omits its violations of statutory, regulatory, or contractual requirements, those omissions can be a basis for liability if they render the defendant’s representations misleading with respect to the goods or services provided.” Id. at 1999. The Court made clear that courts should continue to police expansive implied certification theories “through strict enforcement of the [FCA’s] materiality and scienter requirements.” Id. at 2002 (citation omitted). In particular, “a misrepresentation about compliance with a statutory, regulatory, or contractual requirement must be material to the Government’s payment decision in order to be actionable under the False Claims Act.” Id. The FCA defines the term “material” to mean “having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property.” 31 U.S.C. § 3729(b)(4). The Supreme Court provided some guidance for determining whether a particular statutory" }, { "docid": "929051", "title": "", "text": "bargain,” id at 2003 n.5 (citations omitted). This requirement helps ensure that the False Claims Act does not become “an all-purpose antifraud statute or a vehicle for punishing garden-variety breaches of contract.” Id. at 2003 (citation and internal quotation marks omitted). The Supreme Court also provided guidance as to how the materiality requirement should be enforced. It explained that a misrepresentation is not material “merely because the Government designates compliance with a particular statutory, regulatory, or contractual requirement as a condition of payment ... [or because] the Government would have the option to decline to pay if it knew of the defendant’s noncompliance.” Id. Materiality may be found where “the Government consistently refuses to pay claims in the mine run of cases based on noncompliance with the particular statutory, regulatory, or contractual requirement.” Id. On the other hand, it is “very strong evidence” that a requirement is not material “if the Government pays a particular claim in full despite its actual knowledge that certain requirements were violated.” Id. Finally, materiality “cannot be found where noncompliance is minor or insubstantial.” Id. Petratos’s allegations do not meet this high standard. As the District Court noted: “there are no factual allegations showing that CMS would not have reimbursed these claims had these [alleged reporting] deficiencies been cured.” App. 18. Petratos does not dispute this finding, which dooms his case. Simply put, a misrepresentation is not “material to the Government’s payment decision,” when the relator concedes that the Government would have paid the claims with full knowledge of the alleged noncompliance. See Universal Health Servs., 136 S.Ct. at 1996 (emphasis added). Similarly, we think that where a relator does not plead that knowledge of the violation could influence the Government’s decision to pay, the misrepresentation likely does not “have[ ] a natural tendency to influence ... payment,” as required by the statute. See 31 U.S.C. § 3729(b)(4). At a minimum, this would be “very strong evidence” that the misrepresentation was not material. Universal Health Servs., 136 S.Ct. at 2003. The Supreme Court’s guidance in Universal Health Services also militates against a finding of materiality." }, { "docid": "21837913", "title": "", "text": "Restatement (Second) of Torts, § 538). Materiality is more likely to be found where the information at issue goes “to the very essence of the bargain,” id. at 2003 n.5 (quoting Junius Constr. Co. v. Cohen, 257 N.Y. 393, 178 N.E. 672, 673 (1931)). Materiality “cannot be found where noncompliance is minor or insubstantial.” Id. “Nor is it sufficient for a finding of materiality that the Government would have the option to decline to pay if it knew of the defendant’s noncompliance.” Id. Moreover, the Court expressly affirmed that the question of materiality is not “too fact intensive” to be addressed in the context of a motion to dismiss. Id. at 2004 n.6 (“The standard for materiality that we have outlined is a familiar and rigorous one. And False Claims Act plaintiffs must also plead their claims with plausibility and particularity under Federal Rules of Civil Procedure 8 and 9(b) by, for instance, pleading facts to support, allegations of materiality.”). The Escobar Court also touched upon the FCA’s scienter requirement, noting that the Act imposes liability on any person who “knowingly” presents a false claim for payment to the government, 31 U.S.C. § 3729(a), and defines “knowing” and “knowingly” to mean that a person has “actual knowledge of the information,” “acts in deliberate ignorance of the truth or falsity of the information,” or “acts in reckless disregard of the truth or falsity of the information.” Id. § 3729(b)(1)(A). The Court appeared to construe the scienter, requirement together with the materiality requirement to mean that a claimant must not only “know,” as the term is defined by the FCA, about a violation of a particular statutory or regulatory provision, but also must “know” that compliance with that provision is “material’11 to the government’s payment decision. See 136 S.Ct. at 2001-02 (“A defendant can have ‘actual knowledge’ that a condition is material without the Government expressly calling it a condition of payment.... Likewise, [where] a reasonable person would realize the impera-' tive of a [particular condition],- a defendant’s failure to appreciate the materiality of that condition would amount to ‘deliberate ignorance’ or" }, { "docid": "929050", "title": "", "text": "Avastin in that situation may not be “reasonable and necessary.” C Although we disagree with the District Court’s reasoning, we may affirm its judgment on any ground supported by the record. See, e.g., Guthrie v. Lady Jane Collieries, Inc., 722 F.2d 1141, 1145 n.1 (3d Cir. 1983). Our review of the record leads us to conclude that Petratos cannot establish materiality, which the False Claims Act defines as “having a natural tendency to influence, or be capable of influencing, the payment or receipt of money.” 31 U.S.C. § 3729(b)(4). Just last year in Universal Health Services v. United States ex rel. Escobar, the Supreme Court confirmed that “[a] misrepresentation about compliance with a statutory, regulatory, or contractual requirement must be material to the Government’s payment decision in order to be actionable under the False Claims Act.” — U.S. —, 136 S.Ct. 1989, 1996, 195 L.Ed.2d 348 (2016). The Court described this standard as “demanding” and “rigorous,” id. at 2002-03, and explained that a material misrepresentation is one that goes “to the very essence of the bargain,” id at 2003 n.5 (citations omitted). This requirement helps ensure that the False Claims Act does not become “an all-purpose antifraud statute or a vehicle for punishing garden-variety breaches of contract.” Id. at 2003 (citation and internal quotation marks omitted). The Supreme Court also provided guidance as to how the materiality requirement should be enforced. It explained that a misrepresentation is not material “merely because the Government designates compliance with a particular statutory, regulatory, or contractual requirement as a condition of payment ... [or because] the Government would have the option to decline to pay if it knew of the defendant’s noncompliance.” Id. Materiality may be found where “the Government consistently refuses to pay claims in the mine run of cases based on noncompliance with the particular statutory, regulatory, or contractual requirement.” Id. On the other hand, it is “very strong evidence” that a requirement is not material “if the Government pays a particular claim in full despite its actual knowledge that certain requirements were violated.” Id. Finally, materiality “cannot be found where noncompliance" }, { "docid": "11944810", "title": "", "text": "the violated regulations. See id. at 1997-98. The Court affirmed that “the implied false certification theory can, at least in some circumstances, provide a basis for liability.” Id. at 1999. The Court declined to resolve the broader question of whether “all claims for payment implicitly represent that the billing party is legally entitled to payment,” id. at 2000, but clarified that “the implied certification theory can be a basis for liability, at least where two conditions are satisfied: first, the claim does not merely request payment, but also makes specific representations about the goods or services provided; and second, the defendant’s failure to disclose noncompliance with material statutory, regulatory, or contractual requirements makes those representations misleading half-truths.” Id. at 2001. The Court further explained that the violation need not be of an expressly designated condition for payment; instead, the proper inquiry is whether the misrepresentation was “material to the Government’s payment decision,” Id. at 2002. The Escobar Court emphasized that this materiality standard is “demanding.” Id. at 2003. The Government’s designation that “compliance with a particular statutory, regulatory, or contractual requirement” as a condition for payment does not suffice; nor does the Government’s having “the option to decline to pay if it knew of the defendant’s noncompliance.” Id. Moreover, “minor or insubstantial” noncompliance can never be material, as the FCA is not “a vehicle for punishing garden-variety breaches of contract or regulatory violations.” Id.; see also id. at 2001 (“Whether a provision is labeled a condition of payment is relevant to but not dispositive of the materiality inquiry.”). Proof of materiality also includes — but is not limited to — “evidence that' the defendant knows that the Government consistently refuses to pay claims ... based on noncompliance with the particular [provision]” or, conversely, evidence that “the Government regularly pays a particular type of claim in full despite actual knowledge that certain requirements were violated.” Id. at 2003-04. After articulating these standards, the Supreme Court vacated the judgment below and remanded for a determination of whether the violated requirements were “so central to the provision of mental health counseling that the" }, { "docid": "21837911", "title": "", "text": "or regulatory provision is material under that definition: A misrepresentation cannot be deemed material merely because the Government designates compliance with a particular statutory, regulatory, or contractual requirement as a condition of payment. Nor is it sufficient for a finding of materiality that the Government would have the option to decline to pay if it knew of the defendant’s noncompliance. Materiality, in addition, cannot be found where noncompliance is minor or insubstantial, In sum, when evaluating materiality under the False Claims Act, the Government’s decision to expressly identify a provision as a condition of payment is relevant, but not automatically disposi-tive. Likewise, proof of materiality, can include, but is not necessarily limited to, evidence that the defendant knows that the Government consistently refuses to pay claims in the mine run of cases based on noncompliance with the particular statutory, regulatory, or contractual requirement. Conversely, if the Government pays a particular claim in full despite its actual knowledge that certain requirements were violated, that is very strong evidence that those requirements are not material. Or, if the Government regularly pays a particular type of claim in full despite actual knowledge that certain requirements were violated, and has signaled no change in position, that is strong evidence that the requirements are not material. Id. at 2003-04 (internal citations and footnote omitted). In sum, in considering the question of materiality, courts should consider, but are not bound by, the questions of (1) whether the statute or regulation at issue has been expressly designated by the government as a condition of payment; (2) whether the government has consistently refused to pay' claims based on non-compliance with the particular statute or regulation; and (3) conversely, whether the government has regularly paid claims despite knowledge of technical violations, 'without signaling a change in position. Id. Courts are to apply a holistic approach in determining materiality; no one factor is necessarily determinative. Id. at 2001. Materiality “look[s] to the effect on the likely or actual behavior of the recipient of the alleged misrepresentation.” Id. at 2002-03 (citing Williston on Contracts. § 69:12 (4th ed. 2003) and the" }, { "docid": "11945269", "title": "", "text": "withheld the unreasonableness of its rates from the government (see Compl. at ¶¶ 52, 59, 77, 81-82, 92, 94), the complaint satisfies the first requirement for falsity under the implied certification theory: it alleges that a contractor withheld information about its noncompliance with contractual or regulatory requirements. Falsity under the implied certification theory also requires a second element: materiality. In Escobar, the Supreme Court held that “a misrepresentation about compliance with a statutory, regulatory, or contractual requirement must be material to the Government’s payment decision in order to be actionable under the False Claims Act.” 136 S.Ct. at 2002. “The materiality standard is demanding.” Id. at 2003. It is not sufficient for a finding of materiality “that the Government would have the option to decline to pay if it knew of the defendant’s noncompliance.” Id. Rather, it is relevant whether the government “consistently refuses to pay claims ... based on' noncomplianee with the particular ... requirement” or, on the contrary, “regularly pays a particular type of claim in full despite actual knowledge that certain requirements were violated.” Id. at 2003-04. “Materiality, in addition, cannot be found where noncompliance is minor or insubstantial.” Id. at 2003. A few district courts have addressed whether claims for unreasonable costs are false, but they did so before the Supreme Court articulated the materiality standard in Escobar, and their results have been inconsistent. One case involved allegations of a defendant’s “knowing presentation of invoices for payment to the Government that consisted of unallowable and unreasonable costs,” while “keeping] the Government in the dark about its excess materials and wasteful ordering.” United States ex rel. Howard v. KBR, Inc., 139 F.Supp.3d 917, 943, 945 (C.D. Ill. 2015). The judge acknowledged that reasonableness is highly contestable and “a prudent businessperson may make mistakes and incur costs based on decisions that in retrospect were unwise.” Id. at 943. However, given allegations that high-level employees sought to keep the government in the dark about the wasteful ordering because they knew that auditors would likely find fault with them, the judge concluded that the unreasonable claims could be “objectively false.”" }, { "docid": "9287719", "title": "", "text": "action,' even though a reasonable person would not.\" Id. at 2002-03 (alteration in original) (quoting RESTATEMENT (SECOND) OF TORTS § 538 ( AM. LAW INST. 1977) ). The analysis of materiality is \"holistic.\" United States ex rel. Escobar v. Universal Health Servs. , Inc. , 842 F.3d 103, 109 (1st Cir. 2016). Relevant factors include: (1) \"the Government's decision to expressly identify a provision as a condition of payment\"; (2) whether \"the Government consistently refuses to pay claims in the mine run of cases based on noncompliance with the particular statutory, regulatory, or contractual requirement\" or if, with actual knowledge of the non-compliance, it consistently pays such claims and there is no indication that its practice will change; and (3) whether the \"noncompliance is minor or insubstantial\" or if it goes \"to the very essence of the bargain.\" Escobar , 136 S.Ct. at 2003 & n.5. None of these considerations is dispositive alone, nor is the list exclusive. Id. at 2001-04. 1. Express Condition of Payment \"A misrepresentation cannot be deemed material merely because the Government designates compliance with a particular statutory, regulatory, or contractual requirement as a condition of payment.\" Escobar , 136 S.Ct. at 2003. But such a designation is a relevant factor in determining materiality. Id. The parties vigorously dispute whether the timing requirement in 42 C.F.R. § 424.22(a)(2) is an express condition of payment for RAPs and residual final payments. Appellant Br. at 25-27; Appellees Br. at 28-35; Appellant Reply Br. at 4-6. The district court concluded that the timing requirement was an express condition of payment for both, Prather , 265 F.Supp.3d at 796, and we agree. Medicare Parts A and B condition payment for services on a physician's certification regarding the necessity of such services. 42 U.S.C. §§ 1395f(a)(2) & 1395n(a)(2) ; 42 C.F.R. § 424.10. Thus, \"[i]n order for home health services to qualify for payment under the Medicare program,\" 42 C.F.R. § 409.41 mandates that \"[t]he physician certification and recertification requirements for home health services described in [ 42 C.F.R.] § 424.22\" be met. 42 C.F.R. § 409.41(b). The timing requirement at" }, { "docid": "21837910", "title": "", "text": "that the implied-false-certification theory can be a basis for liability under the FCA under certain circumstances. 136 S.Ct. at 1995. Specifically, the Court held that, “[w]hen ... a defendant makes representations in submitting a claim but omits its violations of statutory, regulatory, or contractual requirements, those omissions can be a basis for liability if they render the defendant’s representations misleading with respect to the goods or services provided.” Id. at 1999. The Court made clear that courts should continue to police expansive implied certification theories “through strict enforcement of the [FCA’s] materiality and scienter requirements.” Id. at 2002 (citation omitted). In particular, “a misrepresentation about compliance with a statutory, regulatory, or contractual requirement must be material to the Government’s payment decision in order to be actionable under the False Claims Act.” Id. The FCA defines the term “material” to mean “having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property.” 31 U.S.C. § 3729(b)(4). The Supreme Court provided some guidance for determining whether a particular statutory or regulatory provision is material under that definition: A misrepresentation cannot be deemed material merely because the Government designates compliance with a particular statutory, regulatory, or contractual requirement as a condition of payment. Nor is it sufficient for a finding of materiality that the Government would have the option to decline to pay if it knew of the defendant’s noncompliance. Materiality, in addition, cannot be found where noncompliance is minor or insubstantial, In sum, when evaluating materiality under the False Claims Act, the Government’s decision to expressly identify a provision as a condition of payment is relevant, but not automatically disposi-tive. Likewise, proof of materiality, can include, but is not necessarily limited to, evidence that the defendant knows that the Government consistently refuses to pay claims in the mine run of cases based on noncompliance with the particular statutory, regulatory, or contractual requirement. Conversely, if the Government pays a particular claim in full despite its actual knowledge that certain requirements were violated, that is very strong evidence that those requirements are not material. Or, if" }, { "docid": "11944809", "title": "", "text": "compliance governing federal rules that are a precondition to payment.” Mikes, 274 F.3d at 699. In Mikes, the Second Circuit held that implied certification is “appropriately applied only when the underlying statute or regulation upon which the plaintiff relies expressly states' the provider must comply in order to be paid.” Id. at 700. In Escobar, however, the Supreme Court abrogated that aspect of Mikes, concluding that “[s]ection 3729(a)(1)(A) imposes liability on those who present ‘false or fraudulent claims’ but does not limit such claims to misrepresentations about express conditions of payment.” Escobar, 136 S.Ct. at 2001. The Supreme Court’s decision in Escobar is significant, even if its implications are not yet entirely clear. There, the relators brought an action against a mental health facility after discovering that the facility’s practitioners were not licensed to provide mental health treatment under state law. See id. at 1997-98. Relying on an implied certification theory, they alleged FCA violations premised on the submission of claims to Medicaid — even though Medicaid reimbursement was not expressly conditioned on compliance with the violated regulations. See id. at 1997-98. The Court affirmed that “the implied false certification theory can, at least in some circumstances, provide a basis for liability.” Id. at 1999. The Court declined to resolve the broader question of whether “all claims for payment implicitly represent that the billing party is legally entitled to payment,” id. at 2000, but clarified that “the implied certification theory can be a basis for liability, at least where two conditions are satisfied: first, the claim does not merely request payment, but also makes specific representations about the goods or services provided; and second, the defendant’s failure to disclose noncompliance with material statutory, regulatory, or contractual requirements makes those representations misleading half-truths.” Id. at 2001. The Court further explained that the violation need not be of an expressly designated condition for payment; instead, the proper inquiry is whether the misrepresentation was “material to the Government’s payment decision,” Id. at 2002. The Escobar Court emphasized that this materiality standard is “demanding.” Id. at 2003. The Government’s designation that “compliance with a" } ]

[ { "docid": "17709785", "title": "", "text": "Himes v. Chadwick, 9 Cir., 199 F.2d 100, ‘a mere aggregation of a number of old parts.’ Hence, a finding which * * * picks out one element in one prior patent and another element in another prior patent as a demonstration of anticipation, is manifestly insufficient to overcome the presumption arising from the issuance of the patent, a presumption reemphasized by the existing Act. 35 U.S.C.A. § 282.” (Id., p.618.) As to the obviousness of an invention, when viewed with the wisdom of hindsight, this court has said: “It is of no significance that ‘viewed after the event, the means * * * adopted seem simple and such as should have been obvious to those who worked in the field, but this is not enough to negative invention.’ Goodyear Tire & Rubber Co. v. Ray-O-Vac Co., 321 U.S. 275 [64 S.Ct. 593, 88 L.Ed. 721] * * *. ‘Now that it has succeeded, it may seem very plain to anyone that he could have done it as well. This is often the case with inventions of the greatest merit.’ Carnegie Steel Co. v. Cambria Iron Co., 185 U.S. 403, 446, [22 S.Ct. 698, 46 L.Ed. 715, 968]. See Patterson-Ballagh Corp. v. Moss, supra [9 Cir., 201 F.2d 403].” National Sponge Cushion Co. v. Rubber Corp., 9 Cir., 1961, 286 F.2d 731, 735. We cannot say that the district court’s findings and conclusion that the patent here in question was valid was error nor without substantial evidence to support it. And defendant fails to present clear and convincing evidence to overcome the presumptions of validity. We therefore affirm the district court’s holding that the patent was good and valid in law. We pass to the issue of infringement. Plaintiff sets forth seventeen points (Op. Br. 21-23). All of the errors specified go to the part of the district court’s judgment which held that defendant had not infringed plaintiff’s patent. We here summarize them as presenting the one question: Whether the district court committed any error in holding defendant not to have infringed plaintiff’s patent. It is well settled that the" } ]

[ { "docid": "21321975", "title": "", "text": "greatly to the commercial success and public acceptance of the Mott mower. As claimed, we consider the angle of the blades to be critical. Without proper angle the self-cleaning principle is not present. Appellees insist, however, that the Mott blades are improvements which would be obvious to the ordinary skilled workman. The trouble with this argument is that the record clearly shows there had long been a demand for a mowing machine which would successfully cut all types of grass under all conditions. The fact that appellees were unsuccessful in their efforts to develop such a machine and made a virtual “Chinese copy” of the Mott mower is persuasive on the issue of obviousness. The patent in suit may be simple when viewed in retrospect. But simplicity is no bar to invention where, as here, the steps taken were not obvious to the ordinary mechanic skilled in the art. Admiral Corporation v. Zenith Radio Corporation, supra; Blish, Mize and Silliman Hdwe. Co. v. Time Saver Tools, supra; Neff Instrument Corporation v. Cohu Electronics, Inc., 9 Cir., 298 F.2d 82; Amp Incorporated v. Vaco Products Co., 7 Cir., 280 F.2d 518, cert. denied, 364 U.S. 921, 81 S.Ct. 286, 5 L.Ed.2d 260. Moreover, the fact that the Mott mower, including the diverging blade tips at an angle in the nature of 65 degrees, has been a commercial success and is capable of more effective performance than any previously devised mower is entitled to consideration here. It is true that commercial success in itself is not sufficient to sustain the validity of a patent or bridge the gap between mechanical skill and invention, but it is evidence of patent validity and in doubtful cases, such as this one, may be the deciding factor. Admiral Corporation v. Zenith Radio Corporation, supra; Consolidated Electro. Corp. v. Midwestern Instruments, supra; Oliver United Filters v. Silver, 10 Cir., 206 F.2d 658, cert. denied, 346 U.S. 923, 74 S.Ct. 308, 98 L.Ed. 416. As stated by the Supreme Court in Goodyear Tire & Rubber Co. v. Ray-O-Vac Co., 321 U.S. 275, 279, 64 S.Ct. 593, 88 L.Ed." }, { "docid": "5443262", "title": "", "text": "merit. Indeed, UBC appears to realize the weakness of this argument, since insufficiency of the evidence is not the principal ground upon which UBC argues for reversal of the willfulness finding. UBC contends that any copying endeavors that occurred prior to the date of issuance of the patents cannot support a finding of willful infringement. A patent application for the Whang ’023 was filed on July 14, 1966, but the Milgo Model 4400/48 modem which was covered by this patent and which was copied by UBC was not marked “patent pending”. The Whang ’023 patent issued on August 11, 1970, and this was the earliest date on which the trial court found that UBC had actual knowledge of Milgo’s patent rights. The copying activities took place before this, over a two-year time span beginning in the spring of 1968. UBC correctly notes that Milgo has not advanced any claim for common law misappropriation of trade secrets and that, under the patent laws, UBC’s liability is limited to the period following the date of issuance of the patent. UBC’s position is that at the time of the alleged copying activities, Milgo’s Model 4400/48 modem was in the public domain, and that UBC had the legal right to acquire and study it. It is true that copying a competitor’s product which is not protected by the patent laws is not illegal. Duplex Straw Dispenser Co. v. Harold Leonard & Co., 229 F.Supp. 401, 404 (S.D.Cal.1964). See also: Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964); Smith v. Dravo Corp., 203 F.2d 369 (7th Cir. 1953). And it is plain that there can be no liability for infringement before a patent issues. Inject-O-Meter Mfg. Co. v. North Plains Fertilizer & Chemical, Inc., 308 F.Supp. 538, 541 (N.D.Tex.1970), aff’d 439 F.2d 1138 (5th Cir. 1971), cert. denied, 404 U.S. 824, 92 S.Ct. 51, 30 L.Ed.2d 52 (1971) (prepatent copying does not constitute infringement); Thomson Machinery Co. v. LaRose, 306 F.Supp. 681, 693 (E.D.La.1969). But unlike the cases cited by UBC to support its contention, the" }, { "docid": "5443261", "title": "", "text": "* * When the damages are not found by a jury, the court shall assess them. In either event the court may increase the damages up to three times the amount found or assessed. $ * * * * * An award of increased or trebled damages is a matter committed to the discretion of the trial court under this statute. Hence, an appellate court can distribute such an award only on a showing of abuse of the trial court’s discretion. Blake v. Bassick Co., 392 F.2d 879, 883 (7th Cir.), cert. denied, 393 U.S. 828, 89 S.Ct. 94, 21 L.Ed.2d 100 (1968); Marvel Specialty Co. v. Bell Hosiery Mills, Inc., 386 F.2d 287, 292 (4th Cir. 1967), cert. denied, 390 U.S. 1030, 88 S.Ct. 1409, 20 L.Ed.2d 286 (1968). UBC contends that there was insufficient evidence to support the court’s findings that Rixon copied the Milgo modem and that Rixon/UBC had actual notice of infringement on the date that the Whang ’023 patent issued. In view of the record, this argument is wholly without merit. Indeed, UBC appears to realize the weakness of this argument, since insufficiency of the evidence is not the principal ground upon which UBC argues for reversal of the willfulness finding. UBC contends that any copying endeavors that occurred prior to the date of issuance of the patents cannot support a finding of willful infringement. A patent application for the Whang ’023 was filed on July 14, 1966, but the Milgo Model 4400/48 modem which was covered by this patent and which was copied by UBC was not marked “patent pending”. The Whang ’023 patent issued on August 11, 1970, and this was the earliest date on which the trial court found that UBC had actual knowledge of Milgo’s patent rights. The copying activities took place before this, over a two-year time span beginning in the spring of 1968. UBC correctly notes that Milgo has not advanced any claim for common law misappropriation of trade secrets and that, under the patent laws, UBC’s liability is limited to the period following the date of issuance of" }, { "docid": "21321976", "title": "", "text": "Cir., 298 F.2d 82; Amp Incorporated v. Vaco Products Co., 7 Cir., 280 F.2d 518, cert. denied, 364 U.S. 921, 81 S.Ct. 286, 5 L.Ed.2d 260. Moreover, the fact that the Mott mower, including the diverging blade tips at an angle in the nature of 65 degrees, has been a commercial success and is capable of more effective performance than any previously devised mower is entitled to consideration here. It is true that commercial success in itself is not sufficient to sustain the validity of a patent or bridge the gap between mechanical skill and invention, but it is evidence of patent validity and in doubtful cases, such as this one, may be the deciding factor. Admiral Corporation v. Zenith Radio Corporation, supra; Consolidated Electro. Corp. v. Midwestern Instruments, supra; Oliver United Filters v. Silver, 10 Cir., 206 F.2d 658, cert. denied, 346 U.S. 923, 74 S.Ct. 308, 98 L.Ed. 416. As stated by the Supreme Court in Goodyear Tire & Rubber Co. v. Ray-O-Vac Co., 321 U.S. 275, 279, 64 S.Ct. 593, 88 L.Ed. 721, commercial success “should, in a close case, tip the scales in favor of patentability.” On this question, appellees point to Great Atlantic & Pacific Tea Co. v. Supermarket Equip ment Corp., 340 U.S. 147, 71 S.Ct. 127, 95 L.Ed. 162, and other cases, holding that commercial success, without invention, will not meet the requirements of patentability. We certainly recognize that principle, but do not apply it in this case because of our legal conclusion that the claims in issue do show an invention. We conclude that the claimed blade self-cleaning principle is novel as well as an advance in the art of mowing; that the teachings of the prior art did not anticipate such principle; that it was not obvious to an ordinary person having skill in the art, prior to the Mott patent; and that it entitled the Mott blade to the standing of an invention. Reversed and remanded with directions to enter judgment in favor of appellants holding claims 11,12 and 13 of Patent No. 2,590,065 to be valid and infringed. ." }, { "docid": "5443224", "title": "", "text": "be achieved by modems incorporating “wide band energy spectrum and two or four level modulation”; that Whang approached the problem with a completely opposite philosophy and was the first to combine eight level modulation and extreme band limiting into one modem. The validity of the Whang ’023 is also reinforced when we consider the “secondary considerations, such as commercial success” mandated by Graham v. John Deere, supra. See also: Deere & Company v. Hesston Corporation, supra. It is uncontested that Western Union looked upon the Whang ’023 as a tremendous breakthrough which satisfied a long felt need. It is also uncontested that the modems were instantly successful and that they were the primary source of commercially acceptable high speed modems until the infringing modems were marketed. We hold that the trial court properly found that Whang ’023 was unobvious, and therefore valid. Query: If the Whang ’023 was as obvious as UBC now contends, why did it require two years for the Rixon employees to analyze and copy it? l.(b) UBC contends that the Whang ’023 is invalid under 35 U.S.C.A. § 102(b) and Muncie Gear Works, Inc. v. Outboard Marine & Mfg. Co., supra, since it was described in a printed publication, the original patent application, more than one year pri- or to the date the amended application was submitted. We hold that the Court properly applied Price v. Lakes Sales Supply R. M., Inc., 510 F.2d 388 (10th Cir. 1974) in determining that the amendment was simply clarifying in form and only made express that which was always present in the original disclosure. 2. UBC contends that “copying is a non-issue” and that the District Court gave too much consideration to actions and events which occurred prior to the issuance dates of the patents herein. UBC argues that since Milgo did not claim damages for violation of trade secrets nor for “appropriation of trade dress or misrepresentation or misappropriation of non patented material or contract protected subject matter”, the District Court improperly gave undue attention to matters which occurred prior to the issuance of the patents herein. This" }, { "docid": "5443217", "title": "", "text": "evidence of copying is properly admissible on the issues of obviousness and infringement; the unob-vious requirement of 35 U.S.C.A. § 103 is fulfilled by an inventor who makes a new and useful improvement where those skilled in the art have failed after repeated efforts to do so; the Milgo patents as to the claims in question have been infringed by Rixon II by its manufacture and sale of the accused data sets, and by UBC by the sale of the accused data sets infringing the Whang ’023 patent until January 1, 1972; and after January 1, 1972, UBC actively induced the infringement of the Milgo patents by and through Rixon II. The court also determined that United was not liable for the infringement of any of the three patents. On appeal UBC contends: (1) the Whang ’023 patent is invalid; (2) copying is a non-issue; (3) UBC did not infringe any of Milgo’s patents; and (4) the Payne ’023 and Ragsdale ’381 patents are invalid. l.(a) UBC contends the Whang ’023 patent is invalid as obvious under 35 U.S.C.A. § 103 and invalid as “described in a printed publication * * * or in public use or on sale * * * more than one year prior to the date of the application for patent” under 35 U.S.C.A. § 102(b) and Muncie Gear Works, Inc. v. Outboard Marine & Mfg. Co., 315 U.S. 759, 62 S.Ct. 865, 86 L.Ed. 1171 (1942). 35 U.S.C.A. § 103 provides in part: A patent may not be obtained though the invention is not identically disclosed or described * * * if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. * * * UBC contends, citing to Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966) that obviousness is to be considered in light of the prior art," }, { "docid": "17192076", "title": "", "text": "Infra-Red Radiant Co. v. Lambert Industries, 360 F.2d at 987-88, and, with respect to the issue of obviousness, the scope of prior art, the difference between the prior art and the patent claim, and the applicable level of ordinary skill. Graham v. John Deere Co., 383 U.S. at 17-18, 86 S.Ct. at 693-694; E. I. du Pont de Nemours & Co. v. Berkley & Co., 620 F.2d at 1263-64. Thus, although we may review the legal conclusions of obviousness and validity, an attack on the sufficiency of the evidence supporting the underlying fact findings must be preserved by a motion for directed verdict. II. INFRINGEMENT Northland contends that the jury erred in finding that Northland’s modified crepe pan infringed Creative’s patent, and in finding that the infringement by Exhibit 63 was willful and wanton. Creative again asserts that Northland’s failure to seek a directed verdict on these issues bars our review of the sufficiency of the evidence. Although infringement, as opposed to validity, is generally a fact question, Milgo Electronic Corp. v. United Business Communications, Inc., 623 F.2d 645, 656 (10th Cir.), cert. denied, 449 U.S. 1066, 101 S.Ct. 794, 66 L.Ed.2d 610 (1980); Marino Systems, Inc. v. J. Cowhey & Sons, Inc., 631 F.2d 313, 315 (4th Cir. 1980), as is the willfulness of the infringement, Norfin, Inc. v. International Business Machines Corp., 625 F.2d 357, 366 (10th Cir. 1980), Northland asserts that the issue of infringement in the present case is a question of law for the court because an essential element of Creative’s patent, the axially extending lip, is not present in Northland’s modified model. Northland relies on Burger Train Systems, Inc. v. Ballard, 552 F.2d 1377 (10th Cir.), cert. denied, 434 U.S. 860, 98 S.Ct. 185, 54 L.Ed.2d 132 (1977), wherein the court held that infringement is a question of law when “it can be determined that the only feature which renders the design patentable is not on the allegedly infringing device.” Id. at 1382. However, that holding is inapplicable in this case because Creative’s patent is based on three features — -the convex cooking surface," }, { "docid": "5443226", "title": "", "text": "Court has consistently held that the exercise of fraud, inequitable conduct, or bad faith in the prosecution of a patent application may result in the unenforceability of a patent ultimately issued. True Temper Corp. v. CF&I Steel Corporation, supra, and cases cited therein. In an analogous vein, we believe that trial courts are empowered, and in fact obligated, to determine the presence of “fraud, inequitable conduct, or-’bad faith” in patent infringement litigation, once a patent is issued. We do not accept UBC’s assertion that the District Court improperly made copying an issue; the Court correctly considered evidence of Rixon’s copying. However we are disinclined to hold that this evidence was considered out of order in derogation of the Court’s determination upholding the patent’s validity. The Court did not, in any event, overextend or enlarge upon the issue of copying in derogation of UBC’s trial rights and privileges, since, as the Court properly noted, evidence of copying is admissible on the issue of obviousness, citing to Mott Corporation v. Sunflower Industries, Inc., 314 F.2d 872 (10th Cir. 1963), and further admissible on the issue of infringement, citing to Lever Brothers Co. v. Procter & Gamble Mfg. Co., 139 F.2d 633 (4th Cir. 1943). In Mott, supra, we stated: Appellees insist, however, that the Mott blades are improvements which would be obvious to the ordinary skilled workman. The trouble with this argument is that the record clearly shows there had long been a demand for a mowing machine which would successfully cut all types of grass under all conditions. The fact that appellees were unsuccessful in their efforts to develop such a machine and made a virtual “Chinese copy” of the Mott mower is persuasive on the issue of obviousness. The patent in suit may be simple when viewed in retrospect. But simplicity is no bar to invention where, as here, the steps taken were not obvious to the ordinary mechanic skilled in the art. Admiral Corporation v. Zenith Radio Corporation, supra [10 Cir., 296 F.2d 708]; Blish, Mize and Silliman Hdwe. Co. v. Time Saver Tools, supra, [10 Cir., 236 F.2d" }, { "docid": "5443222", "title": "", "text": "a trial court and a case such as the one at bar cannot be tried de novo on appeal. Halliburton Company v. Dow Chemical Company, supra; Hinde v. Hot Sulphur Springs, Colorado, supra. These principles were succinctly stated in True Temper Corporation v. CF&I Steel Corporation, supra : Obviousness, of course, is to be assessed as of the time the invention in question was made and from the viewpoint of “a person having ordinary skill in the art to which said [invention] pertains.” 35 U.S.C. § 103. The issue necessarily involves several basic factual inquiries, outlined in Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 15 L.Ed.2d 545, involving the scope and content of the prior art, the differences between the pri- or art and the patent claims in issue, and the level of ordinary skill in the pertinent field. There is also to be considered, however, the general statutory presumption of validity which attaches to a patent once issued by the Patent Office. 35 U.S.C. § 282. See generally Sidewinder Marine, Inc. v. Starbuck Kustom Boats and Products, Inc., 597 F.2d 201 (10th Cir., 1979). We must, therefore, in reviewing the findings of the trial court, consider whether they are supported by the record or are clearly erroneous under the standard of Rule 52, F.R.Civ.P., taking into account the presumption of validity of the patent. See CMI Corp. v. Metropolitan Enterprises, Inc., 534 F.2d 874, 880 (10th Cir.). 601 F.2d at p. 505. Applying these standards, we hold that the Court did not err in finding that the Whang ’023 was not obvious. The Court found, and we agree, that the Whang ’023’s utilization of differential eight phase modulation of a single carrier and narrow bandwidth filtering was contrary to the prior art; that Whang was the first to employ narrow band limiting in a phase modulated system; that modems incorporating the Whang ’023 were the first commercially acceptable modems capable of transmitting 2400 bps over ordinary switched voice-grade telephone lines; that prior to the Whang ’023 the modem industry felt the best results could" }, { "docid": "5443229", "title": "", "text": "Court found: 82. The accused DS-4800 data set includes each and every element recited in claims 1-19 and 21 of the Ragsdale ’381 patent in suit or an equivalent thereof. Each of the elements of the DS-4800 data set perform substantially the same function in substantially the same manner to obtain the same end results as do the corresponding elements of both the claims in suit of the Payne ’023 and Rags-dale ’381 patents (PX 20 and PX 19 respectively) as well as the corresponding elements of the patented Milgo 4400/48 modem which is covered by the Payne ’023 and Ragsdale ’381 patents. 83. Plaintiff’s Exhibit 19 includes the claims at issue in the Ragsdale ’381 patent colored with colors which are matched to corresponding elements of the DS-4800 as depicted in drawings from the DS-4800 manual, which drawings accurately depict and correctly represent the operation of the DS-4800. The claims of Ragsdale ’381, element-by-element and function by function, were applied by Ragsdale and disclosed that each and every claimed element and function is present in the DS-4800 (R. 1167-1222). 84. Plaintiff’s Exhibit 20 includes the claims at issue in the Payne ’023 patent colored with colors which are matched to corresponding elements of the DS-4800 as depicted in drawings from the DS-4800 manual, which drawings accurately depict and correctly represent the operation of the DS^L800. The claims of the Payne ’023 patent, element-by-element and function-by-function, were applied by Ragsdale and proved that each and every claimed element and function is present in the DS-4800 (R. 1134-1165). [R. Appdx., Vol. I at p. 74-75], We hold that the Court properly found that the Milgo patents in question were infringed. 4. UBC contends the Payne ’023 and Rags-dale ’381 patents are invalid as “covering nothing more than obvious combinations of digital principles and logic hardware which were well known to those skilled in the art”. In upholding the validity of the Payne ’023 and the Ragsdale ’381 the Court found: 63. The Payne ’023 patent led Rags-dale to the development of the Rags-dale ’381 digital coherent detection patent (R. 1109-1117). The" }, { "docid": "7748849", "title": "", "text": "at 556; Scaramucci v. Dresser Industries, Inc., 427 F.2d 1309, 1313 (10th Cir.). As defendant says, under this standard it may be held that the process was obvious, as a matter of law. See, e. g., Blish, Mize and Silliman Hdwe. Co. v. Time Saver Tools, Inc., 236 F.2d 913, 916 (10th Cir.), cert. denied, 352 U.S. 1004, 77 S.Ct. 565, 1 L.Ed.2d 549; Research Corp. v. NASCO Industries, Inc., 501 F.2d 358, 362 (7th Cir.), cert. denied, 419 U.S. 1096, 95 S.Ct. 689, 42 L.Ed.2d 688. While we must agree that the question is substantial, we feel the trial court considered the aspects of the issue thoroughly, determining the scope and content of prior art and relevant differences from the patent in suit. Plaintiff’s expert did not develop in detail his skill in the art, but his credentials were ample for acceptance of his opinion as a basis for the findings. M. B. Skinner Co. v. Continental Industries, Inc., 346 F.2d 170, 173 (10th Cir.), cert. denied, 383 U.S. 934, 86 S.Ct. 1062, 15 L.Ed.2d 851. True, the process and plaintiff’s apparatus adopting it do not appear complex. However, simplicity alone is not the test as long as the steps taken are not obvious to the ordinary artisan. See A. E. Staley Mfg. Co. v. Harvest Brand, Inc., 452 F.2d 735, 739 (10th Cir.), cert. denied, 406 U.S. 974, 92 S.Ct. 2415, 32 L.Ed.2d 674. Although defendant strenuously disagrees, we do not think Plumb’s naked assertion that periodic introduction of mix will prevent segregation is a clue that should have rendered the Williams invention obvious, in light of the fact that Plumb as a whole contains teachings that are opposed to the principles employed in the Williams process. When teachings in a prior art patent must be ignored in order to reach a desired result, they become less pertinent to the determination of obviousness. Uarco, Inc. v. Moore Business Forms, Inc., 440 F.2d 580, 585 (7th Cir.), cert. denied, 404 U.S. 873, 92 S.Ct. 91, 30 L.Ed.2d 117; cf. United States v. Adams, 383 U.S. 39, 51-52, 86 S.Ct." }, { "docid": "5443223", "title": "", "text": "Marine, Inc. v. Starbuck Kustom Boats and Products, Inc., 597 F.2d 201 (10th Cir., 1979). We must, therefore, in reviewing the findings of the trial court, consider whether they are supported by the record or are clearly erroneous under the standard of Rule 52, F.R.Civ.P., taking into account the presumption of validity of the patent. See CMI Corp. v. Metropolitan Enterprises, Inc., 534 F.2d 874, 880 (10th Cir.). 601 F.2d at p. 505. Applying these standards, we hold that the Court did not err in finding that the Whang ’023 was not obvious. The Court found, and we agree, that the Whang ’023’s utilization of differential eight phase modulation of a single carrier and narrow bandwidth filtering was contrary to the prior art; that Whang was the first to employ narrow band limiting in a phase modulated system; that modems incorporating the Whang ’023 were the first commercially acceptable modems capable of transmitting 2400 bps over ordinary switched voice-grade telephone lines; that prior to the Whang ’023 the modem industry felt the best results could be achieved by modems incorporating “wide band energy spectrum and two or four level modulation”; that Whang approached the problem with a completely opposite philosophy and was the first to combine eight level modulation and extreme band limiting into one modem. The validity of the Whang ’023 is also reinforced when we consider the “secondary considerations, such as commercial success” mandated by Graham v. John Deere, supra. See also: Deere & Company v. Hesston Corporation, supra. It is uncontested that Western Union looked upon the Whang ’023 as a tremendous breakthrough which satisfied a long felt need. It is also uncontested that the modems were instantly successful and that they were the primary source of commercially acceptable high speed modems until the infringing modems were marketed. We hold that the trial court properly found that Whang ’023 was unobvious, and therefore valid. Query: If the Whang ’023 was as obvious as UBC now contends, why did it require two years for the Rixon employees to analyze and copy it? l.(b) UBC contends that the Whang" }, { "docid": "21321974", "title": "", "text": "the same patent. A patent, particularly a foreign patent, is to be measured as anticipatory, not by what might be made out of it, but by what it clearly and definitely discloses. Hollywood-Maxwell Co. v. Street’s of Tulsa, supra; Steiner Sales Co. v. Schwartz Sales Co., 10 Cir., 98 F.2d 999, cert. denied, 305 U.S. 662, 59 S.Ct. 364, 83 L.Ed. 430. The demonstration conducted by Mott, for the benefit of the Patent Office Examiners, is convincing. It shows clearly, after seeing the Mott mower blades in actual use, that those with authority in the Patent Office were convinced and completely changed their positions in regard to the claims in question. We must assume, in light of their previous action, that the Examiners were viewing the demonstration with the Herriot blade in mind, and they concluded the Mott blade possessed all of the elements required for patentability. Our own examination of Exhibits 16a, 16b and 16c provides additional evidence that the Mott blade claims are meritorious. The self-cleaning ability of the blade certainly has contributed greatly to the commercial success and public acceptance of the Mott mower. As claimed, we consider the angle of the blades to be critical. Without proper angle the self-cleaning principle is not present. Appellees insist, however, that the Mott blades are improvements which would be obvious to the ordinary skilled workman. The trouble with this argument is that the record clearly shows there had long been a demand for a mowing machine which would successfully cut all types of grass under all conditions. The fact that appellees were unsuccessful in their efforts to develop such a machine and made a virtual “Chinese copy” of the Mott mower is persuasive on the issue of obviousness. The patent in suit may be simple when viewed in retrospect. But simplicity is no bar to invention where, as here, the steps taken were not obvious to the ordinary mechanic skilled in the art. Admiral Corporation v. Zenith Radio Corporation, supra; Blish, Mize and Silliman Hdwe. Co. v. Time Saver Tools, supra; Neff Instrument Corporation v. Cohu Electronics, Inc., 9" }, { "docid": "5443228", "title": "", "text": "913]; Neff Instrument Corporation v. Cohu Electronics, Inc., 9 Cir., 298 F.2d 82; Amp. Incorporated v. Vaco Products Co., 7 Cir., 280 F.2d 518, cert. denied, 364 U.S. 921, 81 S.Ct. 286, 5 L.Ed.2d 260. 314 F.2d at p. 880. [Emphasis supplied]. 3. UBC contends it did not infringe on any of the Milgo patents. UBC argues that the Court improperly determined that its DS-4800 modem infringed upon the Whang ’023, the Payne ’023, and the Rags-dale ’381 patents. The question of infringement is one of fact, Burger Train Systems, Inc. v. Ballard, 552 F.2d 1377 (10th Cir. 1977), cert. denied 434 U.S. 860, 98 S.Ct. 185, 54 L.Ed.2d 132 (1977), and, on review, a trial court’s finding thereon will not be set aside unless it is clearly erroneous. Black, Sivalls & Bryson, Inc. v. Keystone Steel Fabrication, 584 F.2d 946 (10th Cir. 1978). We do not try factual matters, such as infringement, de novo. Halliburton Company v. Dow Chemical Company, supra. In determining that the Payne ’023 and Ragsdale ’381 had been infringed, the Court found: 82. The accused DS-4800 data set includes each and every element recited in claims 1-19 and 21 of the Ragsdale ’381 patent in suit or an equivalent thereof. Each of the elements of the DS-4800 data set perform substantially the same function in substantially the same manner to obtain the same end results as do the corresponding elements of both the claims in suit of the Payne ’023 and Rags-dale ’381 patents (PX 20 and PX 19 respectively) as well as the corresponding elements of the patented Milgo 4400/48 modem which is covered by the Payne ’023 and Ragsdale ’381 patents. 83. Plaintiff’s Exhibit 19 includes the claims at issue in the Ragsdale ’381 patent colored with colors which are matched to corresponding elements of the DS-4800 as depicted in drawings from the DS-4800 manual, which drawings accurately depict and correctly represent the operation of the DS-4800. The claims of Ragsdale ’381, element-by-element and function by function, were applied by Ragsdale and disclosed that each and every claimed element and function is present" }, { "docid": "21321966", "title": "", "text": "881, 99 L.Ed. 1278; Aluminum Company of America v. Sperry Products, Inc., 6 Cir., 285 F.2d 911, cert. denied, 368 U.S. 890, 82 S.Ct. 139, 7 L.Ed.2d 87; Allied Wheel Products v. Rude, 6 Cir., 206 F.2d 752. Or, as stated by Judge Breitenstein speaking for this Court in Admiral Corporation v. Zenith Radio Corporation, supra, at page 712 of 296 F.2d: “ * * * To be patentable, a product or process must not only be a new and useful improvement over the prior art but also it must not be obvious to one of ordinary skill in the related art.” We are not concerned here with the element of utility or usefulness since the Mott patent claims in question obviously are useful within the meaning of the statute, 35 U.S.C. § 101. No contention is made to the contrary. We are, however, concerned with the remaining two elements of novelty or lack of anticipation by the prior art and invention or obviousness to one of ordinary skill in the related art. These are the crucial issues and both were resolved against the appellants in the court below primarily upon the basis of the disclosures made in the Herriot patent. Appellants contend that the Herriot patent is in a non-analogous art as defined in A. J. Deer Co. v. United States Slicing Machine Co., 7 Cir., 21 F.2d 812, and that none of the three prior patents contain any disclosure of the alleged Mott self-cleaning principle for grass cutting blades. They argue that it would never occur to a mechanic, having the ordinary skill in the mower art, to look at the blades of a stationary sugar cane chopper, as in Herriot, for the solution to the problem of blade clogging in grass mowers. To bolster this argument, appellants point out that Mott is an inventor, having spent a total of twenty-three years working as such for International Harvester and therefore he is something more than “a mechanic having ordinary skill in the art.\" They further argue that the first experimental Mott blades were at 90 degrees to the" }, { "docid": "3201082", "title": "", "text": "experiments with isolated elements of a combination do not anticipate an invention which successfully combines those elements.” (Citations omitted.) 343 F.2d at 399. Staley admits that all of the elements are old and known in the art. However, Staley argues that as it overcame all of the problems and went against the teachings of the prior art to develop the patented block, it qualifies for a patent. We agree. As we said in McCullough, supra: “The general rule is that before a device may be patentable, the improvement over the prior art must involve more than would be obvious to one of ordinary skill in the art. (Citations omitted). If those skilled in the art are working in a given field and have failed after repeated efforts to discover a particular new and useful improvement, the person who first makes the discovery does more than make the obvious improvement which would suggest itself to a mechanic skilled in the art, and is entitled to protection as an inventor.” (Citations omitted.) 343 F.2d at 399. We feel that Staley has made such an improvement. In Bewal, Inc. v. Minnesota Mining and Manufacturing Company, 292 F.2d 159 (10th Cir. 1961), the test for determining whether a combination was patentable was stated. At 164 we said: “When old elements are united in such a manner that the union accomplishes either a new result or an old result in a more facile, economical and efficient way in a particular environment which presented peculiar and difficult problems, it is a true combination and patentable.” (Citations omitted.) Staley’s inventors overcame serious practical problems in arriving at their patent and advanced the art to a new level of achievement. The invention requires only four ingredients. The amounts are not too critical. However, simplicity is not a bar to invention as long as the steps taken are not obvious to the ordinary mechanic. Blish, Mize and Silliman Hardware Company v. Time Saver Tools, Inc., 236 F.2d 913 (10th Cir. 1956), cert. denied 352 U.S. 1004, 77 S.Ct. 565, 1 L.Ed.2d 549 (1957); Goodyear Tire & Rubber Co., Inc." }, { "docid": "5443216", "title": "", "text": "accounts, including Burroughs Corporation and Honeywell Information Systems, which it lost to Rixon. This resulted after Rixon was able to force prices down and underbid Milgo. Milgo filed the instant suit on July 19, 1971, alleging infringement of its Whang ’023 patent. Thereafter, on September 25, 1972, Milgo amended its complaint to allege the infringement of its Ragsdale ’381 and Payne ’023 patents. United Telecommunications, Inc. (United) and UBC, its wholly-owned subsidiary, were named as defendants. In their answers, United and UBC denied the validity of each patent and both denied infringement. In upholding the Milgo patents the District Court found, inter alia: The Milgo patents were, in all respects, valid and subsisting in law as to the claims in question; the inventions defined in the claims in question would not have been obvious to one of ordinary skill in the art at the time the invention thereof was made; each of the inventions, as to the claims in question are novel and useful and meet the requirements of 35 U.S.C.A. §§ 101 and 102; evidence of copying is properly admissible on the issues of obviousness and infringement; the unob-vious requirement of 35 U.S.C.A. § 103 is fulfilled by an inventor who makes a new and useful improvement where those skilled in the art have failed after repeated efforts to do so; the Milgo patents as to the claims in question have been infringed by Rixon II by its manufacture and sale of the accused data sets, and by UBC by the sale of the accused data sets infringing the Whang ’023 patent until January 1, 1972; and after January 1, 1972, UBC actively induced the infringement of the Milgo patents by and through Rixon II. The court also determined that United was not liable for the infringement of any of the three patents. On appeal UBC contends: (1) the Whang ’023 patent is invalid; (2) copying is a non-issue; (3) UBC did not infringe any of Milgo’s patents; and (4) the Payne ’023 and Ragsdale ’381 patents are invalid. l.(a) UBC contends the Whang ’023 patent is invalid as" }, { "docid": "5443227", "title": "", "text": "Cir. 1963), and further admissible on the issue of infringement, citing to Lever Brothers Co. v. Procter & Gamble Mfg. Co., 139 F.2d 633 (4th Cir. 1943). In Mott, supra, we stated: Appellees insist, however, that the Mott blades are improvements which would be obvious to the ordinary skilled workman. The trouble with this argument is that the record clearly shows there had long been a demand for a mowing machine which would successfully cut all types of grass under all conditions. The fact that appellees were unsuccessful in their efforts to develop such a machine and made a virtual “Chinese copy” of the Mott mower is persuasive on the issue of obviousness. The patent in suit may be simple when viewed in retrospect. But simplicity is no bar to invention where, as here, the steps taken were not obvious to the ordinary mechanic skilled in the art. Admiral Corporation v. Zenith Radio Corporation, supra [10 Cir., 296 F.2d 708]; Blish, Mize and Silliman Hdwe. Co. v. Time Saver Tools, supra, [10 Cir., 236 F.2d 913]; Neff Instrument Corporation v. Cohu Electronics, Inc., 9 Cir., 298 F.2d 82; Amp. Incorporated v. Vaco Products Co., 7 Cir., 280 F.2d 518, cert. denied, 364 U.S. 921, 81 S.Ct. 286, 5 L.Ed.2d 260. 314 F.2d at p. 880. [Emphasis supplied]. 3. UBC contends it did not infringe on any of the Milgo patents. UBC argues that the Court improperly determined that its DS-4800 modem infringed upon the Whang ’023, the Payne ’023, and the Rags-dale ’381 patents. The question of infringement is one of fact, Burger Train Systems, Inc. v. Ballard, 552 F.2d 1377 (10th Cir. 1977), cert. denied 434 U.S. 860, 98 S.Ct. 185, 54 L.Ed.2d 132 (1977), and, on review, a trial court’s finding thereon will not be set aside unless it is clearly erroneous. Black, Sivalls & Bryson, Inc. v. Keystone Steel Fabrication, 584 F.2d 946 (10th Cir. 1978). We do not try factual matters, such as infringement, de novo. Halliburton Company v. Dow Chemical Company, supra. In determining that the Payne ’023 and Ragsdale ’381 had been infringed, the" }, { "docid": "5443215", "title": "", "text": "certain people were allowed to know what went on. You had to carefully identify yourself to people in the locked room before you would be admitted. We were all sworn never to tell anybody where this model, what it was, where it came from and how Rixon acquired it, although I did find that out and things of this nature. So because of this veil of secrecy, secretaries were not certainly supposed to be typing up reports. Everything was handwritten. The schematics I mentioned were drawn by the engineers, not by the draftsmen who normally do that job. [R. Addendum to Appdx., Vol. IV at pp. 6a and 10a]. After successfully copying Milgo’s modem, Rixon began marketing commercially acceptable 2400 bps and 4800 bps modems during the latter part of 1970. Prior thereto, Milgo was the only source of commercially acceptable 4800 bps modems and it was considered the sole source of 2400 bps modems capable of operating on unconditioned switched telephone lines; furthermore, prior thereto Milgo had also built strong business relationships with large accounts, including Burroughs Corporation and Honeywell Information Systems, which it lost to Rixon. This resulted after Rixon was able to force prices down and underbid Milgo. Milgo filed the instant suit on July 19, 1971, alleging infringement of its Whang ’023 patent. Thereafter, on September 25, 1972, Milgo amended its complaint to allege the infringement of its Ragsdale ’381 and Payne ’023 patents. United Telecommunications, Inc. (United) and UBC, its wholly-owned subsidiary, were named as defendants. In their answers, United and UBC denied the validity of each patent and both denied infringement. In upholding the Milgo patents the District Court found, inter alia: The Milgo patents were, in all respects, valid and subsisting in law as to the claims in question; the inventions defined in the claims in question would not have been obvious to one of ordinary skill in the art at the time the invention thereof was made; each of the inventions, as to the claims in question are novel and useful and meet the requirements of 35 U.S.C.A. §§ 101 and 102;" }, { "docid": "7748848", "title": "", "text": "would have been obvious at the time of invention to a person having ordinary skill in the art. See 35 U.S.C.A. § 103. In deciding the question of obviousness the points that must be considered are clear: the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art must be resolved. Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 693, 15 L.Ed.2d 545, 556. The trial court’s findings on these points as to obviousness involve fact questions. Moore v. Shultz, 491 F.2d 294, 300 (10th Cir.), cert. denied, 419 U.S. 930, 95 S.Ct. 203, 42 L.Ed.2d 161. Our inquiry is thus whether the findings are adequately supported by the record as a whole, or are clearly erroneous, although the ultimate question bf patent validity is, of course, one of law. Graham v. John Deere Co., supra, 383 U.S. at 17, 86 S.Ct. at 693, 15 L.Ed.2d at 556; Scaramucci v. Dresser Industries, Inc., 427 F.2d 1309, 1313 (10th Cir.). As defendant says, under this standard it may be held that the process was obvious, as a matter of law. See, e. g., Blish, Mize and Silliman Hdwe. Co. v. Time Saver Tools, Inc., 236 F.2d 913, 916 (10th Cir.), cert. denied, 352 U.S. 1004, 77 S.Ct. 565, 1 L.Ed.2d 549; Research Corp. v. NASCO Industries, Inc., 501 F.2d 358, 362 (7th Cir.), cert. denied, 419 U.S. 1096, 95 S.Ct. 689, 42 L.Ed.2d 688. While we must agree that the question is substantial, we feel the trial court considered the aspects of the issue thoroughly, determining the scope and content of prior art and relevant differences from the patent in suit. Plaintiff’s expert did not develop in detail his skill in the art, but his credentials were ample for acceptance of his opinion as a basis for the findings. M. B. Skinner Co. v. Continental Industries, Inc., 346 F.2d 170, 173 (10th Cir.), cert. denied, 383 U.S. 934, 86 S.Ct. 1062, 15" } ]

[ { "docid": "23083462", "title": "", "text": "(whether police exceed scope of a warrant reviewed de novo). But cf. United States v. Rubio, 727 F.2d 786, 797 (9th Cir.1983) (whether the scope of consent has been exceeded is a factual question reviewed for clear error); United States v. Guzman, 852 F.2d 1117, 1121 (9th Cir.1988) (unclear if question of authority to consent to a search is reviewed for clear error or de novo). ' B. Standing The government contests the district court's finding that Sonnie Davis had a legitimate expectation of privacy in the place searched. To contest the legality of a search under the fourth amendment, the defendant must demonstrate a legitimate expectation of privacy in the place or item searched by showing an actual subjective expectation of privacy which society is prepared to recognize. Minnesota v. Olson, 495. U.S. -, 110 S.Ct. 1684, 1687, 109 L.Ed.2d 85 (1990); Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979); Rakas v. Illinois, 439 U.S. 128, 143 & n. 12, 99 S.Ct. 421, 430 & n. 12, 58 L.Ed.2d 387 (1978). The defendant has the burden of establishing, under the totality of the circumstances, the search or seizure violated his legitimate expectation of privacy in a particular place. Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980). The Supreme Court has held an overnight guest has a reasonable expectation of privacy in a friend’s residence even though he has no legal interest in the premises and does not have legal authority to determine who may enter the household. Olson, 495 U.S. -, 110 S.Ct. at 1688-89; see also United States v. Robertson, 606 F.2d 853, 858 n. 2 (9th Cir.1979) (overnight guest had standing to assert fourth amendment violation in search of his possessions). This court has held that a defendant who moved a laboratory to his friend’s house to avoid detection and who used that site to manufacture drugs had a legitimate expectation of privacy. United States v. Pollock, 726 F.2d 1456, 1465 (9th Cir.1984). A defendant who was an alleged co-owner of a storage" } ]

[ { "docid": "90223", "title": "", "text": "place searched are important in determining whether the person has met his or her burden of demonstrating a reasonable expectation of privacy, see Rakas v. Illinois, 439 U.S. 128, 130-31 n. 1, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Whether an expectation of privacy is legitimate for Fourth Amendment purposes depends upon “whether the government’s intrusion infringes upon the personal and societal values protected by the Fourth Amendment.” Oliver v. United States, 466 U.S. 170, 183, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). In deciding this issue, the Court considers location — whether a person or his possessions are in a home, ear, curtilage, open field or office. Without question, the warrant clause of the Fourth Amendment applies to searches on commercial premises, see Marshall v. Barlow’s, Inc., 436 U.S. 307, 311-12, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978); See v. City of Seattle, 387 U.S. 541, 543, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967), however, commercial premises differ from personal residences in nature and use, and therefore Fourth Amendment protection is more limited. See Donovan v. Dewey, 452 U.S. 594, 598-99, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981). Where commercial premises are not open to the public, “the reasonable expectation of privacy depends upon the particular nature and circumstances surrounding the place to be searched.” United States v. Bute, 43 F.3d 531, 536 (10th Cir.1994); see See, 387 U.S. at 545, 87 S.Ct. 1737. The district court found that Mr. Anderson was present during a holiday and had taken steps to maintain his privacy in Room 222 by closing the door, shutting the blinds and curtains, and by placing a towel over one of the windows. See Aplt. App. at 75. This court extends the analysis by focusing on one of the items found in the search of the room, the videotapes in Mr. Anderson’s possession, and holds that Mr. Anderson has standing to challenge the search and statements made in connection with it. Under the court’s analysis, Mr. Anderson would have standing to challenge a search anywhere in the building provided the item seized was owned and controlled" }, { "docid": "23357595", "title": "", "text": "shed during the night before the police arrived. Defendants also claim that, because the government argued at the arrest and bail hearings that Defendants exercised dominion and control over the items seized in the shed, the government should be estopped from making an inconsistent argument with respect to standing. 1. Standing Fourth Amendment rights cannot be asserted vicariously. Rakas v. Illinois, 439 U.S. 128, 134, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); United States v. Johns, 851 F.2d 1131, 1135 (9th Cir.1988). In order to claim the protections of the Fourth Amendment here, Defendants must establish that they had an expectation of privacy in the shed and that their expectation was reasonable. Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998). The reasonableness of an expectation of privacy is evaluated “either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Rakas, 439 U.S. at 143 n. 12, 99 S.Ct. 421. Defendants have the burden of establishing that, under the totality of the circumstances, the search or the seizure violated their legitimate expectation of privacy. Sarkisian, 197 F.3d at 986. Defendants argue that they had a legitimate expectation of privacy in the shed because they were renters of property used for commercial purposes or were overnight guests. It is true that an individual can have a legitimate expectation of privacy in a commercial area. Id. Similarly, an overnight guest has a legitimate expectation of privacy in the host’s property. Minnesota v. Olson, 495 U.S. 91, 96 n. 4, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990); United States v. Gamez-Orduno, 235 F.3d 453, 458 (9th Cir.2000). Under the present facts, however, neither theory affords Defendants standing to contest the search of the shed. In United States v. Davis, 932 F.2d 752, 757 (9th Cir.1991), this court held that the defendant had standing to contest the search of a friend’s apartment when the defendant previously had resided at the apartment and still possessed a key; had permission to come and go as he pleased; had independent access" }, { "docid": "13058259", "title": "", "text": "came across information that was both related to the purposes of their search and implicated Reinhold in the crime. That the evidence could now support a new charge against a new (but already identified) person does not compel its suppression. On these facts, we disagree with the district court’s conclusion that the officers should have obtained a new search warrant when they came across the incriminating emails. In so concluding, we are careful to note that in this case the evidence discovered was clearly related to the crime referred to in the warrant. We need not decide to what extent the government would be able to introduce evidence discovered that the police knew, at the time of discovery, was not related to the crime cited in the warrant. Cf United States v. Carey, 172 F.3d 1268, 1272-73 (10th Cir.1999) (excluding certain evidence of child pornography where the warrant authorized only seizure of drug evidence and the detective knew he was expanding the scope of the warrant, and holding that the officer should have stopped the search and obtained a new warrant.). III. Conclusion “The Fourth Amendment incorporates a great many specific protections against unreasonable searches and seizures.” Beusch, 596 F.2d at 876-77. The contours of these protections in the context of computer searches pose difficult questions. Computers are simultaneously file cabinets (with millions of files) and locked desk drawers; they can be repositories of innocent and deeply personal information, but also of evidence of crimes. The former must be protected, the latter discovered. As society grows ever more reliant on computers as a means of storing data and communicating, courts will be called upon to analyze novel legal issues and develop new rules within our well established Fourth Amendment jurisprudence. See Eric L. Probst and Kerri A. Wright, Using Their E-Words Against Them, NEW JERSEY LAW JOURNAL, Jan. 30, 2006, at SI (noting that tens of billions of emails are sent daily). The fact of an increasingly technological world is not lost upon us as we consider the proper balance to strike between protecting an individual’s right to privacy and" }, { "docid": "17431638", "title": "", "text": "context, as explained more fully below, so as to distort its meaning to the point of misrepresentation. More to the point, characterizing the question as one of “standing” miscasts the issue. The Supreme Court rejected the concept of “standing” in Rakas v. Illinois, 439 U.S. 128, 139-40, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). It is commonly acknowledged that “in determining whether a defendant is able to show the violation of his ... Fourth Amendment rights, the 'definition of those rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing.’ ” Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (quoting Rakas, 439 U.S. at 140, 99 S.Ct. 421). The Sixth Circuit has recognized that “the concept of ‘standing’ has not had a place in Fourth Amendment jurisprudence for more than a decade” and that “the matter of standing in the context of searches and seizures actually involve[s] substantive Fourth Amendment law [in which] ... a defendant [must] prove a legitimate expectation of privacy as a prerequisite to challenging assertedly unlawful police conduct.” United States v. Smith, 263 F.3d 571, 581-82 (6th Cir.2001) (quoting United States v. Sanchez, 943 F.2d 110, 113 n. 1 (1st Cir.1991)). Thus, in order to determine whether the defendant may challenge the search and seizure in this case as a violation of the Fourth Amendment, the defendant must establish, first, that he had an actual, subjective expectation of privacy, and second, that the expectation was a legitimate, objectively reasonable one. Smith, 263 F.3d at 581 (citing Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979)). “Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Rakas, 439 U.S. at 143 n. 12, 99 S.Ct. 421. The Sixth Circuit has not spoken directly to the issue of whether a man has a legitimate expectation of privacy in a car that he is" }, { "docid": "23600623", "title": "", "text": "the owner of a computer manifested a reasonable expectation of privacy in the contents of data files by storing them on a computer hard drive); United States v. Chan, 830 F.Supp. 531, 534 (N.D.Cal.1993) (analogizing data in a pager to contents of a closed container). Finally, the record indicates that Run-yan took normal precautions to maintain his privacy with respect to these materials. Runyan’s efforts to secure the barn against intrusion by locking the barn door, putting a chain on the gate to the ranch, and installing video surveillance equipment at the ranch certainly qualify as normal precautions to maintain privacy. See Vega, 221 F.3d at 796 (indicating that relevant factors when evaluating “normal precautions to maintain privacy” include whether the searched area is fenced or railed, whether the searched area was locked, and whether strangers were invited into the searched area). Because application of the relevant Cardoza-Hinojosa factors indicates that Runyan had a protectable privacy interest in the materials that were the subject of the pre-warrant police examinations, those examinations are a series of “searches” within the meaning of the Fourth Amendment. However, this court has recognized that “a police view subsequent to a search conducted by private citizens does not constitute a ‘search’ within the meaning of the Fourth Amendment so long as the view is confined to the scope and product of the initial search.” United States v. Bomengo, 580 F.2d 173, 175 (5th Cir.1978); see also United States v. Paige, 136 F.3d 1012, 1019 (5th Cir.1998). The government contends that the pre-warrant examinations at issue in the instant case were not “searches” because this “private search” doctrine applies. The Supreme Court articulated the private search doctrine in Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980), and United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). In Walter, packages containing pornographic filmstrips were delivered to the wrong company. Employees of the company that erroneously received the shipment opened the packages and found film canisters. The content of each film was described on the exterior of its" }, { "docid": "23220597", "title": "", "text": "personal, and may be enforced only by persons whose own protection under the Amendment has been violated. Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 424-26, 58 L.Ed.2d 387 (1978). To contest the validity of a search, a defendant must demonstrate that he himself exhibited an actual subjective expectation of privacy in the area searched, and that this subjective expectation is one that society is willing to accept as reasonable. Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979) (citing Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516-17, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring)). A defendant lacks “standing” in the Fourth Amendment context when his contacts with the searched premises are so attenuated that no expectation of privacy he has in those premises could ever be considered reasonable. See Rakas, 439 U.S. at 137-38, 99 S.Ct. at 427-28. Although the extent of a defendant’s property or possessory interest in the place searched is a factor generally considered in determining the reasonableness of a defendant’s expectation of privacy, United States v. Osorio, 949 F.2d 38, 40 (2d Cir.1991), a defendant’s lack of such an interest does not rule out the possibility that he may still show a reasonable expectation of privacy. See Minnesota v. Olson, 495 U.S. 91, 99, 110 S.Ct. 1684, 1689, 109 L.Ed.2d 85 (1990) (houseguest has legitimate expectation of privacy); Rakas, 439 U.S. at 143-144 n. 12, 99 S.Ct. at 430 n. 12. Residence may give rise to an expectation of privacy, United States v. Babwah, 972 F.2d 30, 35 (2d Cir.1992), but an individual may also have a “sufficient interest in a place other than his own home so that the Fourth Amendment protects him.” Rakas, 439 U.S. at 142, 99 S.Ct. at 430. For instance, where a guest has permission to use an apartment, is given a key, and uses the apartment in the owner’s absence, society may be prepared to recognize the guest’s privacy, even though no property interest exists. Jones v. United States, 362 U.S. 257, 259, 80 S.Ct. 725, 730," }, { "docid": "600923", "title": "", "text": "545 F.3d 757, 759 n. 1 (9th Cir.2008). III Jefferson argues that the district court erred in denying his suppression motion because the postal inspector’s detainment of his package on April 6 violated the Fourth Amendment. The .first clause of the Fourth Amendment safeguards “[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. “This text protects two types of expectations, one involving ‘searches,’ the other ‘seizures.’ A ‘search’ occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. A ‘seizure’ of property occurs when there is some meaningful interference with an individual’s possessory interests in that property.” United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) (footnotes omitted). “It has long been established that an addressee has both a possessory and a privacy interest in a mailed package.” United States v. Hernandez, 313 F.3d 1206, 1209 (9th Cir.2002). Our case law expressly forecloses any assertion by Jefferson that his privacy interests in the package were implicated. The postal inspector’s visual inspection of the package did not implicate - the Fourth Amendment because “[w]hat a person knowingly exposes to the public ... is not a subject of Fourth Amendment protection.” United States v. Hoang, 486 F.3d 1156, 1159 (9th Cir.2007) (quoting Katz v. United States, 389 U.S: 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). Likewise, the’ postal inspéctor’s “use of a well-trained narcotics-detection dog ... [did] not implicate legitimate privacy interests.” Illinois v. Caballes, 543 U.S. 405, 409, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005); see also Hoang, 486 F.3d at 1160. Because Jefferson’s privacy interests were not implicated, “the only constitutional interest potentially implicated is [his] possessory interest in the package.” See Hoang, 486 F.3d at 1160. “We have characterized the possessory interest in a mailed package as being solél-y in the package’s timely delivery.” Id. (citing United States v. England, 971 F.2d 419, 420-21 (9th Cir.1992)). “In other words, an addressee’s possessory interest is in the timely delivery of a package," }, { "docid": "16375355", "title": "", "text": "or Altman could have used a phrase such as “just between you and me,” which would have clearly communicated their desire to maintain the privacy of their speech. Pattee, 512 F.Supp.2d at 1377. That did not happen here. Accordingly, the undisputed facts show that Plaintiffs did not have a subjective expectation. of privacy. 3. Was Plaintiffs’ Expectation of Privacy Reasonable? The Court must next assess whether Plaintiffs’ expectation of privacy was reasonable. McKinnon, 985 F.2d at 527. The Court notes that “[l]egitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property or to understandings that are recognized and permitted by society.” Rakas v. Illinois, 439 U.S. 128, 143 n. 12, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). “Thus, an individual asserting Fourth Amendment rights ‘must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable.’ ” United States v. Suarez-Blanca, No. 1:07-CR-0023-MHS/AJB, 2008 WL 4200156 (N.D.Ga. Apr. 21, 2008) (citing Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998)). Moreover, whether an individual has a reasonable expectation of privacy is a question of law, not fact. McKennon, 814 F.2d at 1543. Here, Plaintiffs do not have a reasonable expectation of privacy. Multiple reasons compel that conclusion. As an initial matter, “public employees’ expectations of privacy in their offices, desks, and file cabinets ... may be reduced by virtue of actual office practices and procedures, or by legitimate regulation.” O’Connor v. Ortega, 480 U.S. at 717, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987); see also U.S. v. Novak, 531 F.3d 99, 101 (1st Cir.2008) (“A telephone call can be monitored and recorded without violating the Fourth Amendment so long as one participant in the call consents to the monitoring”). Thus, Plaintiffs do not have an expectation of privacy in an office where their telephone calls are routinely recorded pursuant to established office policy. See U.S. v. Mitchell, No. 3:11-CV-248(S1)-J-34TEM, 2013 WL 3808152, at *10 (M.D.Fla. July 22, 2013), Here, a number" }, { "docid": "8783234", "title": "", "text": "(1967). The government bears the burden of establishing that the circumstances of a warrantless search or seizure bring it within an exception to the warrant requirement. See Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). It is undisputed that Davis’ clothing was seized from his hospital room without a warrant. Therefore, the seizure was unreasonable unless justified by an established warrant exception. As the Supreme Court explained in United States v. Jacobsen, the Fourth Amendment protects two types of expectations, one involving “searches,” the other “seizures.” A “search” occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. A “seizure” of property occurs when there is some meaningful interference with an individual’s possessory interests in that property. United States v. Jacobsen, 466 U.S. 109, 112, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). Therefore, to challenge a search, a defendant must demonstrate that he had a reasonable expectation of privacy in the premises or property searched. See Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). However, to challenge a seizure, a defendant need only establish that the seizure interfered with his constitutionally protected possessory interests. The infringement of privacy rights, while often a precursor to a seizure of property, is not necessary to such challenge. See United States v. Padilla, 508 U.S. 77, 113 S.Ct. 1936, 123 L.Ed.2d 635 (1993). Defendant argues that the warrantless seizure of his clothing was illegal because he retained a possessory interest in his clothing while in his hospital room. The Government counters that the seizure was justified under either the “plain view” or “inevitable discovery” exceptions to the warrant requirement. 1. Defendant Retained A Possessory Interest In His Clothing While Hospitalized Courts consistently recognize that a hospital patient retains a possessory interest in his or her clothing, even if the clothing has been taken by hospital personnel and stored elsewhere for safekeeping. See, e.g., United States v. Neely, 345 F.3d 366, 369 (5th Cir.2003); Jones v. State, 648 So.2d 669, 675 (Fla.1994) (“even if we were to find" }, { "docid": "12097791", "title": "", "text": "items seized were authorized. The military judge denied motions to suppress the evidence derived from these searches. We will review his decision to determine if the military judge erred in allowing the evidence to be presented. As with all Fourth Amendment searches, the key issue is whether the search was reasonable under the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). In general, an appellate court should not set aside the factual determinations of a trial judge (on matters other than guilt) unless they are clearly erroneous. United States v. Burris, 21 M.J. 140 (C.M.A.1985). Consequently, we will review the military judge’s ruling under an abuse of discretion standard. Expectation of Privacy The underlying issue in a case involving an asserted violation of the Fourth Amendment is whether the person making the claim has a legitimate expectation of privacy in the invaded place. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). In Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), the Supreme Court noted that a person asserting a right to privacy under the Fourth Amendment has to meet a two-prong test. First, the person must exhibit an actual (subjective) expectation of privacy. The second prong requires a showing that the individual’s subjective expectation of privacy is one that society is prepared to recognize as reasonable (objective). See also United States v. Ayala, 26 M.J. 190 (C.M.A.1988). Stated simply, in order for there to be a search under the Fourth Amendment, the Government must have infringed upon an expectation of privacy society is prepared to consider reasonable. See United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) (upholding an expectation of privacy in wrapped parcel delivered to a private freight carrier); Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) (holding there was no expectation of privacy in open fields even when “No Trespassing” signs are posted). The burden of establishing a reasonable expectation of privacy falls upon the appellant. Rawlings" }, { "docid": "1388536", "title": "", "text": "erred in denying his motion to suppress the evidence seized from the Toquet House for lack of standing. He contends he established a reasonable expectation of privacy in the premises, which the district court was not at liberty to reject unless it determined at a hearing that the facts he alleged were untrue. A defendant seeking to suppress the fruits of a search by reason of a violation of the Fourth Amendment must show that he had a “legitimate expectation of privacy” in the place searched. Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). This inquiry involves two distinct questions: first, whether the individual had a subjective expectation of privacy; and second, whether that expectation of privacy is one that society accepts as reasonable. See Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring); accord United States v. Chuang, 897 F.2d 646, 649 (2d Cir.1990). A protected privacy inter est has been found in a wide array of circumstances, ranging from ownership or regular occupancy of a home, United States v. Villegas, 899 F.2d 1324, 1333 (2d Cir.1990), to status as an overnight guest in someone else’s home, Minnesota v. Olson, 495 U.S. 91, 99, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990), or even in someone else’s hotel room, United States v. Wilson, 36 F.3d 1298, 1303 (5th Cir.1994), to a rental storage unit, United States v. Johns, 851 F.2d 1131, 1136 (9th Cir.1988), to one’s business premises, Mancusi v. DeForte, 392 U.S. 364, 369, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968), including the desk drawers and file cabinets contained therein, O’Connor v. Ortega, 480 U.S. 709, 718-19, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987), as well as the contents of one’s office computer, Leventhal v. Knapek, 266 F.3d 64, 73 (2d Cir.2001). Hamilton proffered the following facts supporting his claim of a privacy interest in the Toquet House: (1) Hamilton had paid the $250,000 for the purchase of the house; (2) the purchase was registered in the name of Shane Johnson, who was identified" }, { "docid": "3994650", "title": "", "text": "Court’s statement in Place that the seizure violated the fourth amendment because it unreasonably infringed “the suspect’s possessory interest in his luggage.” 462 U.S. at 708, 103 S.Ct. at 2645. Nor does it heed cases like Rakas v. Illinois, in which the Court explicitly recognized that although a search of a home (and by extension, a car) does not violate any legitimate expectations of privacy of visitors in the home, those visitors could nonetheless “contest the lawfulness of the seizure of evidence ... if their own property were seized during the search.” 439 U.S. 128, 142 n. 11, 99 S.Ct. 421, 430 n. 11, 58 L.Ed.2d 387 (1978). See also United States v. Salvucci, 448 U.S. 83, 91 n. 6, 100 S.Ct. 2547, 2552 n. 6, 65 L.Ed.2d 619 (1980) (“Legal possession of the seized good may be sufficient in some circumstances to entitle a defendant to seek the return of the seized property if the seizure, as opposed to the search, was illegal.”); United States v. Jackson, 585 F.2d 653, 657 (4th Cir.1978) (defendant’s ownership of a bag containing gambling receipts found in car belonging to another gave him standing to contest seizure of the bomb though not the search of the car) (citing United States v. Lisk, 522 F.2d 228, 230-31 (7th Cir.1975) (Stevens, J.), cert. denied, 423 U.S. 1078, 96 S.Ct. 865, 47 L.Ed.2d 89 (1976)). It devotes little attention to cases like United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984), in which the Court held that by asserting control over a package that had already been opened and searched by private parties, federal agents “seized” the package for purposes of the fourth amendment even though the agents did not invade the privacy of the package’s owner when they seized it. Id. at 120-21, 104 S.Ct. at 1660. See also Autoworld Specialty Cars v. United States, 815 F.2d 385, 389 (6th Cir.1987) (seizure by customs agents of automobiles displayed in public showroom subject to fourth amendment despite lack of invasion of privacy); United States v. Bagley, 772 F.2d 482, 490 (9th" }, { "docid": "4423260", "title": "", "text": "Cir.1990). 1. Standing — The Fourth Amendment to the United States Constitution protects citizens against unreasonable searches and seizures. Evidence seized during an unreasonable search may be suppressed. While the government has the burden of proving the legality of the evidence obtained, Defendants are obliged to show that they have standing to challenge the search of a vehicle. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). The government acknowledges that McKneely, the renter of the vehicle, and Ellis, the driver of the vehicle, have standing to challenge the search, but contends that Akines does not have standing. Because Fourth Amendment protection against unreasonable search and seizure is personal, a party may not assert the rights of others, but rather must establish the violation of his own rights. To establish a personal right, a party must have standing to challenge the search. Standing is another way of saying that the claimant had a reasonable expectation of privacy in the premises searched. Therefore, to establish standing, Akines must show that he had a subjective expectation of privacy in the vehicle and that such expectation is one that society recognizes as reasonable. Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984); United States v. Arango, 912 F.2d 441, 445 (10th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 1318, 113 L.Ed.2d 251 (1991). In assessing whether Akines had a reasonable expectation of privacy, ownership or lawful possession of the vehicle may be dispositive factors. Arango, 912 F.2d at 445. “ ‘[0]ne who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of his right to exclude.’ ” Id. (quoting Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978)). In Rakas, the United States Supreme Court held that passengers of a searched vehicle did not have “any legitimate expectation of privacy in the glove compartment” of that vehicle. Rakas, 439 U.S. at 148, 99 S.Ct. at 433. Neither can it be said that Akines, because he is charged with a" }, { "docid": "13883106", "title": "", "text": "also agree with the government that, even if King had standing to allege a Fourth Amendment violation, the letters should not be suppressed because they were acquired through the acts of a private individual. The Fourth Amendment to the United States Constitution protects against unreasonable government searches and seizures. To allege a Fourth Amendment violation, an individual must have “a legitimate expectation of privacy” in the items searched or seized. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); United States v. Barry, 673 F.2d 912 (6th Cir.), cert. denied, 459 U.S. 927, 103 S.Ct. 238, 74 L.Ed.2d 188 (1982). It is well established that letters are “in the general class of effects” protected by the Fourth Amendment. United States v. Jacobsen, 466 U.S. 109, 114, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984). However, if a letter is sent to another, the sender’s expectation of privacy ordinarily terminates upon delivery. 4 Wayne R. LaFave, Search and Seizure, § 11.3(f)(1987); United States v. Knoll, 16 F.3d 1318, 1321 (2nd Cir.), cert. denied sub nom., Gleave v. United States, — U.S.-, 115 S.Ct. 574, 130 L.Ed.2d 490 (1994). This is true even though the sender may have instructed the recipient to keep the letters private. United States v. Williams, 951 F.2d 853, 856 (7th Cir.1992) (test for standing is whether sender of note expected it to be returned). In this ease, King voluntarily mailed the letters at issue to his wife. Although he may have instructed her to preserve the confidentiality of the letters, there is no evidence that he expected her to return the letters to him. Under those circumstances, his expectation of privacy in the letters terminated upon delivery of the letters to his wife. Therefore, King lacks standing to allege a Fourth Amendment violation in the seizure of those letters. In addition, even if King had standing, the letters should not be suppressed because the government acquired them through the actions of a private individual. The Fourth Amendment does not apply to searches or seizures by private persons. Jacobsen, 466 U.S. at 114, 104" }, { "docid": "23134201", "title": "", "text": "387 (1978). See Pollard, 215 F.3d at 646-47; United States v. Sanchez, 943 F.2d 110, 113 n. 1 (5th Cir.1991). “[I]n determining whether a defendant is able to show the violation of his ... Fourth Amendment rights, the ‘definition of those rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing.’ ” Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (quoting Rakas, 439 U.S. at 140, 99 S.Ct. 421). As the Fifth Circuit noted in Sanchez, 943 F.2d at 113 n. 1: Technically, the concept of “standing” has not had a place in Fourth Amendment jurisprudence for more than a decade, since the Supreme Court in Rakas v. Illinois, indicated that the matter of standing in the context of searches and seizures actually involved substantive Fourth Amendment law. The Court thus dispensed with standing as a “discrete analytic element apart from the merits” in such cases, instead requiring a defendant to prove a legitimate expectation of privacy as a prerequisite to challenging assertedly unlawful police conduct. We therefore use the term “standing” somewhat imprecisely to refer to this threshold substantive determination. (internal citations and quotations omitted). In the present case, we also use “standing” to refer to the threshold substantive determination of whether Smith has a reasonable expectation of privacy under the Fourth Amendment. Thus, in order to determine whether Smith may challenge the seizure as a violation of the Fourth Amendment, we must determine first, whether he had an actual, subjective expectation of privacy, and second, whether that expectation was a legitimate, objectively reasonable expectation. See Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979); Pollard, 215 F.3d at 647. “Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Rakas, 439 U.S. at 143 n. 12, 99 S.Ct. 421. Smith has the burden of establishing his standing to assert a Fourth Amendment" }, { "docid": "23368254", "title": "", "text": "are foreign, but from my experience, I cannot believe that anyone would seek human breath in the echos of a tap. Our court is not concerned with the immigration of lilliputians. And fourth amendment safeguards should not be mini-turized because of the drug problems in this country. . New York v. Class, 475 U.S. 106, 112, 106 S.Ct. 960, 965, 89 L.Ed.2d 81 (1986); United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984); Smith v. Maryland, 442 U.S. 735, 739, 99 S.Ct. 2577, 2579, 61 L.Ed.2d 220 (1979); Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978). In Rakas, the Court stated that: Legitimation of expectations of privacy by law must have a source outside of the fourth amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society. One of the main rights attaching to property is the right to exclude others ... and one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude. Expectations of privacy protected by the fourth amendment, of course, need not be based on a common-law interest in real or personal property, or on the invasion of such an interest_ But by focusing on legitimate expectations of privacy in fourth amendment jurisprudence, the Court has not altogether abandoned use of property concepts in determining the presence or absence of privacy interests protected by that Amendment. Id. . Place, 462 U.S. at 707, 103 S.Ct. at 2644. . Id. . Jacobsen, 466 U.S. at 111, 104 S.Ct. at 1655. . Id. . Id. 466 U.S. at 124 n. 24, 104 S.Ct. at 1662 n. 24 (emphasis added). . Hicks, 107 S.Ct. at 1152. . Id. . Id. . Id. . Id. . Id. . See also Arkansas v. Sanders, 442 U.S. 753, 764 n. 13, 99 S.Ct. 2586, 2593 n. 13, 61 L.Ed.2d 235 (1979) (emphasis added): Not all containers and packages found by police" }, { "docid": "18402037", "title": "", "text": "movements with it, thereby invading her privacy. (Appellants’ Opening Br. at 19.) Churc-hich argues the momentary insertion of his rifle through Alicia’s open but barred bedroom window did not constitute a search under the Fourth Amendment. Even assuming the “threshold of the home” can be applied to a window, he claims the objective of the Fourth Amendment is to protect one’s privacy. He alleges his rifle was not a surveillance device and it was not inserted for the purpose of “searching.” (Appellee Churchich’s Br. at 20.) Therefore, he asserts no private matter was revealed by the insertion of his rifle into Alicia’s window. A search under the Fourth Amendment “occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.” United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). Whether an individual has a constitutionally protected reasonable expectation of privacy in an object or place is a two-fold inquiry: (1) whether the individual has manifested a subjective expectation of privacy in the object or place to be searched and (2) whether that expectation is one society is prepared to recognize as reasonable. United States v. Hatfield, 333 F.3d 1189, 1195 (10th Cir.2003). “[T]he burden of establishing a legitimate expectation of privacy is on the party claiming a Fourth Amendment violation, and we have applied that same rule to a claimed invasion of the curtilage.” United States v. Cavely, 318 F.3d 987, 994 (10th Cir.2003) (citation omitted). It is well-settled an individual has a reasonable expectation of privacy in the interior of one’s home and its curtilage. Kyllo v. United States, 533 U.S. 27, 34, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001); Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984); see also Hatfield, 333 F.3d at 1196 (“[P]rivacy in the interior of a home and its curtilage are at the core of what the Fourth Amendment protects.... ”). However, “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Katz v." }, { "docid": "13058260", "title": "", "text": "search and obtained a new warrant.). III. Conclusion “The Fourth Amendment incorporates a great many specific protections against unreasonable searches and seizures.” Beusch, 596 F.2d at 876-77. The contours of these protections in the context of computer searches pose difficult questions. Computers are simultaneously file cabinets (with millions of files) and locked desk drawers; they can be repositories of innocent and deeply personal information, but also of evidence of crimes. The former must be protected, the latter discovered. As society grows ever more reliant on computers as a means of storing data and communicating, courts will be called upon to analyze novel legal issues and develop new rules within our well established Fourth Amendment jurisprudence. See Eric L. Probst and Kerri A. Wright, Using Their E-Words Against Them, NEW JERSEY LAW JOURNAL, Jan. 30, 2006, at SI (noting that tens of billions of emails are sent daily). The fact of an increasingly technological world is not lost upon us as we consider the proper balance to strike between protecting an individual’s right to privacy and ensuring that the government is able to prosecute suspected criminals effectively. In this era of rapid change, we are mindful of Justice Brandeis’s worry in Olmstead v. United States, Ways may some day be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home.... Can it be that the Constitution affords no protection against such invasions of individual security? 277 U.S. 438, 474, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (Brandéis, J., dissenting). We do not now have occasion to address the myriad complex issues raised in deciding when a court should exclude evidence found on a computer, but are satisfied that the agents in this case acted properly in searching Reinhold’s computer and seizing the emails in question here. The district court erred in excluding these emails. Therefore, the district court’s ruling on the motion to suppress is reversed, and this matter is remanded for further proceedings consistent with" }, { "docid": "1643911", "title": "", "text": "the search of the warehouse and that Lingenfelter did not have standing to challenge the seizure and subsequent search of the Asmara. The district court denied the motions to suppress. II We first discuss the standing issues: whether Lingenfelter and Marolf had standing to challenge the legality of the warehouse search, and whether Lingenfelter had standing to contest the seizure and subsequent search of the Asmara. Where the facts are not in dispute, we review de novo the question of standing to assert a Fourth Amendment claim. United States v. Echegoyen, 799 F.2d 1271, 1277 (9th Cir.1986). In order to challenge a search on Fourth Amendment grounds, a defendant bears the burden of demonstrating that he or she had a legitimate expectation of privacy in the place searched. Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978) (Rakas); United States v. Singleton, 987 F.2d 1444 (9th Cir.1993). Fourth Amendment rights are personal rights and “[a] person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed.” Rakas, 439 U.S. at 134, 99 S.Ct. at 425. Under this rule, “coconspirators and codefendants have been accorded no special standing.” Alderman v. United States, 394 U.S. 165, 172, 89 S.Ct. 961, 965, 22 L.Ed.2d 176 (1969). Both Lingenfelter and Marolf ground their standing argument in the Ninth Circuit’s “coconspirator exception” to the general Rakas rule that a defendant cannot contest the violation of another person’s Fourth Amendment rights. See United States v. Taketa, 923 F.2d 665, 671 (9th Cir.1991). This exception provides that a defendant may challenge a search of a third party’s property if he or she had a reasonable expectation of privacy in the place searched based on a formal arrangement indicating joint control or supervision. See id. Relying on this exception, Lingenfelter and Marolf contend that they were parties to a formalized agreement to import marijuana from Thailand to California aboard the Asmara and to store that" }, { "docid": "9645089", "title": "", "text": "“was arguably not clearly established under existing law at the time of [Detective] Broderick’s search.” J.A. 539. Nevertheless, the district court apparently concluded that this right was clearly established because the court ultimately denied Detective Broder-ick’s motion for summary judgment. 1. We first consider Doe’s claim that Detective Broderick violated his Fourth Amendment rights by obtaining and examining his patient file during the search of the methadone clinic without probable cause. We conclude that Doe has stated a claim under the Fourth Amendment. Indeed, at oral argument Detective Broder-ick conceded this point. However, we are obliged to address this point to “promote[ ] clarity in the legal standards for official conduct, to the benefit of both the officers and the general public.” Wilson, 526 U.S. at 609, 119 S.Ct. 1692. The protections of the Fourth Amendment are triggered when an individual seeking refuge under the Fourth Amendment “has a legitimate expectation of privacy in the invaded place” or the item seized. Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); see United States v. Rusher, 966 F.2d 868, 873-74 (4th Cir.1992). Thus, searches and seizures conducted in the absence of probable cause and a warrant are impermissible only if the officer encroaches upon a legitimate expectation of privacy. See California v. Greenwood, 486 U.S. 35, 39, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988). A legitimate expectation of privacy exists when the individual seeking Fourth Amendment protection maintains a “subjective expectation of privacy” in the area searched that “society [is] willing to recognize ... as reasonable.” California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986); see Oliver v. United States, 466 U.S. 170, 177-78, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) (explaining that the legitimacy of a reasonable expectation of privacy under the Fourth Amendment is determined by “our societal understanding”). There is no question that Doe maintained a genuine subjective expectation of privacy'in his records and files kept at the methadone clinic. The more interesting issue is whether a patient’s expectation of privacy — Doe’s expectation of privacy — in" } ]

[ { "docid": "2576214", "title": "", "text": "Court established three sub-divisions to this inquiry : Prejudice, of course, should be assessed in the light of the interests of the defendants, which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility the defense will be impaired. Of these, the most serious is the last . Barker v. Wingo, supra, 407 U.S. at 532, 92 S.Ct. at 2193. As related to prevention of oppressive pre-trial incarceration, defendant-appellee’s sole argument rests upon the fact that no resolution of any charges against him resulted until four months after his arrest. As of December 6, 1971, defendant-appellee had been sentenced to one to two and one-half years by a Michigan State Court. We conclude that a four month delay, without a demand for trial or a specific showing of prejudice is not of constitutional dimensions. Incarceration after this point in time could have had no prejudicial effect save defendant-appellee’s argument that he was denied parole because of the pending federal charge. This court notes, however, that defendant-appellee was, at the time of his parole hearing, serving concurrent time for a felony conviction in New York. We therefore conclude that defendant-appellee’s argument that he suffered prejudice as the result of the pending federal charge is highly speculative. Such prejudice, if any, is deserving of little weight in the balancing process to determine a constitutional violation of a person’s right to a speedy trial. See United States v. Cabral, 475 F.2d 715 (C.A.1 1973); McCrory v. Cook, 329 F.Supp. 83 (N.D. Miss.1971), aff’d. 454 F.2d 1173 (C.A.5 1972). As to the anxiety and concern of defendant-appellee over his pending federal indictment, the record is devoid of any reference to such factors. While at least some such adverse effects would appear inherent in every trial delay, where . . . there has been no allegation or evidence of any inconvenience, public embarrassment or manifestation of prejudice the overall adverse effect can be assumed to be insubstantial. United States" } ]

[ { "docid": "23601317", "title": "", "text": "where a due process issue was raised in regard to a pre-indictment delay, see e. g., United States v. Manning, 509 F.2d 1230, 1234 (9th Cir.1974); United States v. Erickson, 472 F.2d 505, 507-08 (9th Cir.1973); United States v. Griffin, 464 F.2d 1352, 1354-55 (9th Cir.), cert. denied, 409 U.S. 1009, 93 S.Ct. 447, 34 L.Ed.2d 302 (1972). . Clerk’s Transcript at 119. If the district court had granted a continuance here, such continuance would have been due to the government’s negligence. See note 49, infra. . Barker v. Wingo, supra, 407 U.S. at 530, 92 S.Ct. at 2192; see United States v. Geelan, 520 F.2d 585, 587 (9th Cir.1975). . 407 U.S. at 530-31, 92 S.Ct. at 2182; 520 F.2d at 587. . 407 U.S. at 531, 92 S.Ct. at 2182. Thus, if this Court were confronted with a speedy trial constitutional issue where the charge involved a serious, complex conspiracy, w.e would have a different question than the one presently before us. . Id; see Strunk v. United States, 412 U.S. 434, 436, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973); United States v. Latimer, 511 F.2d 498, 501 (10th Cir.1975). In Strunk, the Supreme Court held that in light of the policies underlying the Speedy Trial Clause, dismissal of the charges is the only possible remedy for a deprivation of this constitutional right. 412 U.S. at 439-40, 93 S.Ct. at 2260. . 407 U.S. at 525, 528, 531-32, 92 S.Ct. at 2182, see United States v. Geelan, supra, 520 F.2d at 587-88. We note that appellee requested dismissal, based on pre-indictment delay on due process grounds which motion was denied by the district judge. Nowhere in that motion nor in any other portion of the record, was there a demand for a speedy trial. . 407 U.S. at 532; 92 S.Ct. at 2193; see United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966); United States v. Dreyer, 533 F.2d 112, 116 (3rd Cir.1976); United States v. Brown, 172 U.S.App.D.C. 92, 520 F.2d 1106, 1110-13 (1975); United States v. Roberts, 515 F.2d 642," }, { "docid": "22329189", "title": "", "text": "petitioner’s repeated demands, did the State discharge its “constitutional duty to make a diligent, good-faith effort to bring him [to trial]”? Smith v. Hooey, 393 U. S. 374, 383 (1969). Moreover, prejudice to a defendant caused by delay in bringing him to trial is not confined to the possible prejudice to his defense in those proceedings. Inordinate delay, “wholly aside from possible prejudice to a defense on the merits, may 'seriously interfere with the defendant’s liberty, whether he is free on bail or not, and . . . may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.’ United States v. Marion, 404 U. S. 307, 320 (1971). These factors are more serious for some than for others, but they are inevitably present in every case to some extent, for every defendant will either be incarcerated pending trial or on bail subject to substantial restrictions on his liberty.” Barker v. Wingo, supra, at 537 (White, J., concurring). See also id., at 532-533 (majority opinion). Some of these factors may carry quite different weight where a defendant is incarcerated after conviction in another State, but no court should overlook the possible impact pending charges might have on his prospects for parole and meaningful rehabilitation. Strunk v. United States, 412 U. S. 434, 439 (1973). The State of Arizona itself has conceded that this is a close case under Barker v. Wingo and that it is arguable whether the three-year delay was excusable. Because we agree and because “the right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment,” Klopfer v. North Carolina, 386 U. S. 213, 223 (1967), we grant the motion for leave to proceed in forma pauperis and the petition, vacate the judgment, and remand to the Arizona Supreme Court to reassess petitioner's case under the standards mandated by Smith, Barker, and Dickey. So ordered. The court did not mention the unavailability of one of the two key witnesses as the result of her deportation" }, { "docid": "9339996", "title": "", "text": "and delays in initiating appellate review.” Burkett I, 826 F.2d at 1222. In Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973), the Supreme Court stated that the Barker v. Wingo factors assume a different (presumably lesser) stature where the defendant is incarcerated after conviction, but explicitly rejected the notion that prejudice is confined to possible impairment of the defense at trial. Instead the Court cautioned that the possible impact impending charges may have on prospects for parole and meaningful rehabilitation should not be overlooked. Moore, 414 U.S. at 27, 94 S.Ct. at 190. The Supreme Court has discussed another specific incident which may invoke post-conviction prejudice. In Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973), quoting Smith v. Hooey, 393 U.S. 374, 378, 89 S.Ct. 575, 577, 21 L.Ed.2d 607 (1969), the Court stated: [T]he possibility that a defendant already in prison might receive a sentence at least partially concurrent with the one he is serving may be forever lost if trial of the pending charge is postponed. Strunk, 412 U.S. at 437-38, 93 S.Ct. at 2262-63. Relying on Moore, Strunk and Smith in applying the prejudice prong of the Barker v. Wingo analysis to post-conviction delays, our sister courts of appeals have identified three traditional interests protected by the speedy trial right: “(1) prevention of oppressive incarceration; (2) minimization of anxiety and concern of the accused; and (3) limitation of the possibility that a defense might be impaired,” Barker, 407 U.S. at 532, 92 S.Ct. at 2193, and have adapted them to the relevant timeframe, i.e., awaiting sentence or disposition on appeal. For example, oppressive pre-trial incarceration is not a concern, but instead, focus is directed towards the defendant’s time awaiting sentence, the anxiety associated with not knowing the extent of time to be served, and the hindering of a defense on retrial. See Perez v. Sullivan, 793 F.2d at 256-57. The difficulty in establishing prejudice in the post-conviction setting was addressed by the Court of Appeals for the Tenth Circuit in Perez. Although acknowledging the Supreme Court" }, { "docid": "3991401", "title": "", "text": "speedy trial guarantee is an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself. United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627 (1966). This guarantee is not implicated when charges are formally dropped against the defendant. United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468 (1971). Therefore, we reject Covington’s assertion that the delay should be measured from the day he was arrested in 1982 since formal charges were not pending against him as of that date. Rather, we will judge the constitutionality of the delay only between the date Covington was re-indicted, October 30, 1984, and the date he was first brought to trial, April 8, 1985. Although the Speedy Trial Clause does not provide guidance for determining when a defendant has been denied his right under the clause, the Supreme Court adopted a balancing test in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2191, 33 L.Ed.2d 101 (1972): We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. See also United States v. Gibson, 513 F.2d 978, 980 (6th Cir.1975) (per curiam); United States v. Borman, 437 F.2d 44, 46 (2d Cir.) (per curiam), cert. denied, 402 U.S. 913, 91 S.Ct. 1394, 28 L.Ed.2d 655 (1971). The defendant asserts that he was prejudiced by the failing memories of the prosecution’s witnesses. The Court acknowledged in Barker v. Wingo that the impairment of a defendant’s ability to prepare a defense is the most serious prejudice which can result from post-arrest delay. 407 U.S. at 532, 92 S.Ct. at 2192. However, there is absolutely no indication that" }, { "docid": "561808", "title": "", "text": "at 532-533, 92 S.Ct. 2182. Of the four factors to be assessed, prejudice to the defendant is the most critical one. United States v. Reynolds, 489 F.2d 4, 7 (6th Cir. 1973). “Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect.” Barker, 407 U.S. at 532, 92 S.Ct. 2182, 2193. These interests of the defendant are: to prevent oppressive pretrial incarceration; to minimize anxiety and concern of the accused; and to limit the possibility that the defense will be impaired. Ibid. According to the Barker decision, the most important of these interests is the possible impairment of a defense. At the evidentiary hearing, Trigg testified that had he been brought to trial more promptly, he would probably have been able to establish his whereabouts during the period in question. Yet, this vague allegation of a potential alibi defense does not indicate any serious injury to the petitioner’s interests. By contrast, the defendant in Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970), was definitely prejudiced by the death of his purported alibi witness who died during the long delay. In his motion to quash the information, Dickey alleged both the anticipated testimony and the specific identity of the deceased witness. Id. at 35 n. 5, 90 S.Ct. 1564; cf. United States v. Martinez, 498 F.2d 464, 465-466 (6th Cir. 1974). The Supreme Court in Barker identified a second interest as the prevention of oppressive pretrial incarceration. This is inapposite here because the petitioner was already serving a federal sentence when he began to contest the state detainer. However, the Supreme Court has recognized that convicted defendants may suffer prejudice peculiar to their situation. First, an outstanding detainer may subject the defendant to tighter security or may foreclose him from receiving the benefits of parole and rehabilitation. See Strunk v. United States, 412 U.S. 434, 439, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973); Moore, 414 U.S. at 27, 94 S.Ct. 188. According to the petitioner, he was deprived of better living accommodations and" }, { "docid": "23601318", "title": "", "text": "93 S.Ct. 2260, 37 L.Ed.2d 56 (1973); United States v. Latimer, 511 F.2d 498, 501 (10th Cir.1975). In Strunk, the Supreme Court held that in light of the policies underlying the Speedy Trial Clause, dismissal of the charges is the only possible remedy for a deprivation of this constitutional right. 412 U.S. at 439-40, 93 S.Ct. at 2260. . 407 U.S. at 525, 528, 531-32, 92 S.Ct. at 2182, see United States v. Geelan, supra, 520 F.2d at 587-88. We note that appellee requested dismissal, based on pre-indictment delay on due process grounds which motion was denied by the district judge. Nowhere in that motion nor in any other portion of the record, was there a demand for a speedy trial. . 407 U.S. at 532; 92 S.Ct. at 2193; see United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966); United States v. Dreyer, 533 F.2d 112, 116 (3rd Cir.1976); United States v. Brown, 172 U.S.App.D.C. 92, 520 F.2d 1106, 1110-13 (1975); United States v. Roberts, 515 F.2d 642, 645 (2nd Cir.1975); United States v. Jackson, 508 F.2d 1001, 1004 (7th Cir.1975). . Clerk’s Transcript at 119; see Strunk v. United States, supra, 412 U.S. at 439, 93 S.Ct. at 2263, where the Court asserted: “The speedy trial guarantee recognizes that a prolonged delay may subject the accused to an emotional stress that can be presumed to result in the ordinary person from uncertainties in the prospect of facing public trial or of receiving a sentence longer than, or consecutive to, the one he is presently serving — uncertainties that a prompt trial removes.” . See Barker v. Wingo, supra, 407 U.S. at 532, 534, 92 S.Ct. at 2182; United States v. Annerino, 495 F.2d 1159, 1163-64 (7th Cir.1974); United States v. DeTienne, 468 F.2d 151, 157-58 (7th Cir.1972), cert. denied, 410 U.S. 911, 93 S.Ct. 974, 35 L.Ed.2d 274 (1973). . See 407 U.S. at 533-34, 92 S.Ct. at 2182. We do not mean to imply that there must be a delay over a period of years before a constitutional violation is found." }, { "docid": "10792128", "title": "", "text": "a means of transportation to escape the police and that he offered to let Hunter go but Hunter wanted to stay with the car. We note that the offense of kidnapping does not require any evidence of pecuniary motive. E. g., United States v. Ca-valiaro, 553 F.2d 300, 304 (2d Cir. 1977), citing United States v. Healy, 376 U.S. 75, 81-82, 84 S.Ct. 553, 557, 11 L.Ed.2d 527 (1964). . Appellant’s 1980 trial will be referred to as his second trial for purposes of clarity. Appellant pleaded guilty on the first day of his 1978 trial (see note 4 supra). . We also find no violation of appellant’s sixth amendment right to a speedy trial. Under the ad hoc balancing test set forth in Barker v. Wingo, 407 U.S. 514, 530-32, 92 S.Ct. 2182, 2191-93, 33 L.Ed.2d 101 (1972), we must consider at least the following four factors: length of delay, the reason for the delay, the promptness of the defendant’s assertion of the right to a speedy trial, and the prejudice to the defendant from such delay. The two-year delay from arrest to trial in the present case was substantial and thus a sufficient “triggering mechanism” to require further inquiry, id. at 530, 92 S.Ct. at 2191. However, the reasons for the delay weigh strongly in favor of the government. Approximately 15‘/2 months delay is attributable to the time between appellant’s guilty plea and the successful collateral attack and thus not chargeable to the government. See United States v. Mills, 434 F.2d 266, 270 (8th Cir. 1970), cert. denied, 401 U.S. 925, 91 S.Ct. 908, 27 L.Ed.2d 828 (1971), citing United States v. Ewell, 383 U.S. 116, 121, 86 S.Ct. 773, 777, 15 L.Ed.2d 627 (1966); cf. United States v. Herman, 576 F.2d 1139, 1145 & n.5 (5th Cir. 1978) (withdrawal of guilty plea). As discussed in the text, most of the six months between the time the first conviction was vacated and trial was consumed by various defense motions and psychiatric examinations. See Hodgdon v. United States, 365 F.2d 679, 686 (8th Cir. 1966), cert. denied, 385 U.S." }, { "docid": "8383698", "title": "", "text": "remedies regarding the speedy trial claim, Morris petitioned the federal district court seeking habeas corpus relief. The matter was referred to a United States magistrate who reviewed the record and recommended that the petition be denied. The district judge concurred in this recommendation and dismissed the petition without holding an evidentiary hearing. On appeal Morris again raises the claim that he was denied his sixth amendment right to a speedy trial. Additionally, he asserts that the district court erred in not granting him an evidentiary hearing. I. In Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972), the Supreme Court discussed in some detail the manner in which a court must evaluate a speedy trial claim. The Court recognized that each case needs to be approached on an ad hoc basis, and it identified four factors to be utilized by the courts to make a balancing test in each instance: “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” (Footnote omitted.) The first factor, length of delay, acts as a triggering mechanism for further inquiry into the speedy trial allegation. Barker v. Wingo, supra, 407 U.S. at 530, 92 S.Ct. 2182; Arrant v. Wainwright, 468 F.2d 677, 680 (5th Cir. 1972), cert. denied, 410 U.S. 947, 93 S.Ct. 1369, 35 L.Ed.2d 613 (1973). Here the gap of approximately 15V2 months from indictment to trial must be considered presumptively prejudicial so as to require further consideration of Morris’ claim. However, we do not consider the delay so inordinately lengthy as to automatically weigh heavily against the state. See Barker v. Wingo, supra, (five-year delay — no denial of speedy trial); United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966) (19-month delay—no denial of speedy trial); United States v. Roemer, 514 F.2d 1377 (2d Cir. 1975) (56-month delay—no denial of speedy trial); United States v. Skillman, 442 F.2d 542, 557 (8th Cir.), cert. denied, 404 U.S. 833, 92 S.Ct. 82, 30 L.Ed.2d 63 (1971) (20-month delay — no denial of" }, { "docid": "5343470", "title": "", "text": "this case, the length of the delay was not impermissibly long. (3) The defendant did not incur any serious prejudice by the delay. Although we do not base our decision on this ground alone, it is by far the most important variable here. Upon our examination of the record, we conclude that the delay did not impair the defendant’s ability to defend himself. Based upon the above factors, we hold that the district court was correct in denying the defendant’s motion to dismiss on constitutional speedy trial grounds. Accordingly, the judgment of the district court is affirmed. . 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969). . 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Other Supreme Court decisions which Graham relies upon on appeal are Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975); Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973); Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973); United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970); United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). . 393 U.S. at 383, 89 S.Ct. at 579. . 407 U.S. at 530, 92 S.Ct. at 2192. . Id. at 533, 92 S.Ct. at 2193. “In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.” Id. For law review articles which consider the balancing approach in greater detail, see, e. g., Amsterdam, Speedy Criminal Trial: Rights and Remedies, 27 Stanford Law Review 525, 539-41 (1975); Godbold, Speedy Trial — Major Surgery for a National 111, 24 Alabama Law Review 265, 274-88 (1972); Steinberg, Right to Speedy Trial; The Constitutional Right and its Applicability to the Speedy Trial Act of 1974, 66 Journal of Criminal Law & Criminology 229, 230-32 (1975); Comment, Devitalization of the Right" }, { "docid": "11861703", "title": "", "text": "hostility.” Barker v. Wingo, supra, 407 U.S. at 533, 92 S.Ct. at 2193, 33 L.Ed.2d at 118. A proper reading of Barker, therefore, must include within the meaning of “prejudice” any threat to what the Second Circuit recently has termed “an accused’s significant stakes — psychological, physical and financial — in the prompt termination of a proceeding which may ultimately deprive him of life, liberty or property.” United States v. Roberts, 515 F.2d 642, 645 (2d Cir. 1975). The speedy trial guarantee has generally been regarded as a shield against personal prejudice to a defendant. Strunk v. United States, 412 U.S. 434, 439, 93 S.Ct. 2260, 2263, 37 L.Ed.2d 56, 61 (1973); Dickey v. Florida, 398 U.S. 30, 41-42, 90 S.Ct. 1564, 1570-71, 26 L.Ed.2d 26, 34 (1970) (Brennan, J., concurring); Smith v. Hooey, 393 U.S. 374, 379, 89 S.Ct. 575, 577, 21 L.Ed.2d 607, 612 (1969); Klopfer v. North Carolina,, 386 U.S. 213, 222, 87 S.Ct. 988, 993, 18 L.Ed.2d 1, 7 (1967); United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627, 630 (1966). Some decisions appear to express more solicitude toward this sort of prejudice than toward impairment of a defense. Indeed, erosion of a defense by passage of time may occur even when there is a delay between the commission of the offense and the criminal prosecution, whether by arrest, formal indictment, or information. Nevertheless, the speedy trial guarantee is not applied to such delay. See Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205, 44 U.S.L.W. 3327 (Dec. 1, 1975). The Court in United States v. Marion, supra, explained: Inordinate delay between arrest, indictment, and trial may impair a defendant’s ability to present an effective defense. But the major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused’s defense. 404 U.S. at 320, 92 S.Ct. at 463, 30 L.Ed.2d at 478. The Court went on to emphasize the disruptions to a defendant’s life which begin with his arrest and indictment in the language quoted by Justice" }, { "docid": "11861702", "title": "", "text": "189-190, 38 L.Ed.2d 183, 185-186 (1973) (per curiam). There the Court quoted approvingly from Justice White’s concurring opinion in Barker v. Wingo, supra, 407 U.S. at 537, 92 S.Ct. at 2195, 33 L.Ed.2d at 121: Inordinate delay “wholly aside from possible prejudice to a defense on the merits, may ‘seriously interfere with the defendant’s liberty, whether he is free on bail or not, and . . . may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.’ United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). These factors are more serious for some than for others, but they are inevitably present in every case to some extent, for every defendant will either be incarcerated pending trial or on bail subject to substantial restrictions on his liberty.” The majority in Barker also recognized that an accused is “disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion, and often hostility.” Barker v. Wingo, supra, 407 U.S. at 533, 92 S.Ct. at 2193, 33 L.Ed.2d at 118. A proper reading of Barker, therefore, must include within the meaning of “prejudice” any threat to what the Second Circuit recently has termed “an accused’s significant stakes — psychological, physical and financial — in the prompt termination of a proceeding which may ultimately deprive him of life, liberty or property.” United States v. Roberts, 515 F.2d 642, 645 (2d Cir. 1975). The speedy trial guarantee has generally been regarded as a shield against personal prejudice to a defendant. Strunk v. United States, 412 U.S. 434, 439, 93 S.Ct. 2260, 2263, 37 L.Ed.2d 56, 61 (1973); Dickey v. Florida, 398 U.S. 30, 41-42, 90 S.Ct. 1564, 1570-71, 26 L.Ed.2d 26, 34 (1970) (Brennan, J., concurring); Smith v. Hooey, 393 U.S. 374, 379, 89 S.Ct. 575, 577, 21 L.Ed.2d 607, 612 (1969); Klopfer v. North Carolina,, 386 U.S. 213, 222, 87 S.Ct. 988, 993, 18 L.Ed.2d 1, 7 (1967); United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773," }, { "docid": "1269878", "title": "", "text": "without advising his client of the ramifications or from a situation in which no counsel is appointed. Barker v. Wingo, 407 U.S. at 514, 92 S.Ct. 2182. Consider U. S. v. Butler, 426 F.2d 1275, 1278 (1st Cir. 1970) a pre-Barker decision. After May, 1976 petitioner was left to fend for his own legal rights. During the two following years, no motions, requests or petitions demanding trial were forthcoming yet petitioner was without counsel. Not until counsel was appointed in January of 1978 was the motion to dismiss for lack of a speedy trial filed. This court will not deal in speculation as to the reasons why for two years petitioner remained silent nor will it deprive petitioner under these circumstances his fundamental right by finding a waiver present. Little weight is attached to his failure to assert his rights under the circumstances. Id. In considering the final criterion, it is proper to say that the right to speedy trial is designed to protect against two distinct types of prejudice — prejudice to the person and prejudice to the defense. Barker v. Wingo, 407 U.S. 514 at 532, 92 S.Ct. 2182 at 2193 identified the purpose of this right is: “to prevent oppressive pretrial incarceration, to minimize anxiety and concern of the accused and, to limit the possibility that the defense will be impaired.” The Supreme Court in Moore v. Arizona, 414 U.S. 25, 27, 94 S.Ct. 188, 38 L.Ed.2d 183 (1974) in citing Justice White’s concurring opinion in Barker enlarged upon the possible prejudice to the person stating that inordinate delay: “wholly aside from possible prejudice to the defense on the merits, may ‘seriously interfere with the defendant’s liberty, whether he is free on bail or not, and may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy and create anxiety in him, his family and his friends’ ”. It is well recognized that courts cannot overlook the possible impact pending charges might have on an incarcerated petitioner’s prospects for parole and meaningful rehabilitation. Id. Prejudice also results from the loss of the" }, { "docid": "7491542", "title": "", "text": "v. Wingo, 407 U.S. 514, 531-32, 92 S.Ct. 2182, 2192-93, 33 L.Ed.2d 101 (1972), Salzmann’s long silence does not weigh heavily against him. He was without counsel prior to his request that Lusky represent him. It is likely, therefore, that he was unaware of his right to a speedy trial or of the consequences of his failure to demand a trial promptly. Failure to demand a speedy trial cannot be construed as a waiver unless knowingly and voluntarily made. Id. at 529, 92 S.Ct. at 2191. See United States v. Holt, 145 U.S.App.D.C. 185, 448 F.2d 1108, 1111, cert. denied, 404 U.S. 942, 92 S.Ct. 292, 30 L.Ed.2d 256 (1971); United States v. Butler, 426 F.2d 1275, 1278 (1st Cir.), aff’d after remand, 434 F.2d 243 (1970), cert. denied, 401 U.S. 978, 91 S.Ct. 1207, 28 L.Ed.2d 328 (1971); United States v. Reed, 285 F.Supp. 738, 741 (D.D.C. 1968). Cf. Rule 8, Second Circuit Rules; Rule 7, E.D.N.Y. 50(b) Plan; Rule 8, Interim Speedy Trial Act Plan. The government’s position that “where [a] defendant was aware of the pending indictment, his decision to avoid trial constitutes a waiver of his right to a speedy trial” is simply incorrect. Letter of Assistant United States Attorney Thomas R. Maher, United States v. Salzmann, June 10, 1976. 4. Prejudice to Defendant and Public The final factor is the prejudice to the defendant. Salzmann and his family have endured for four years the anxiety attendant on criminal indictment, a burden that is weighty. See Strunk v. United States, 412 U.S. 434, 439, 93 S.Ct. 2260, 2263, 37 L.Ed.2d 56 (1973); United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971); Note, The Right to a Speedy Criminal Trial, 57 Colum.L.Rev. 846, 864 (1957). In addition, Salzmann has suffered a special prejudice. As was noted in some detail in the course of a discussion of the Speedy Trial Rules, supra, Salzmann cannot take advantage of two options available to other draft offenders to escape prosecution. The United States Attorney is no longer able to offer submission to induction into" }, { "docid": "18008301", "title": "", "text": "States v. Strunk, 467 F.2d 969, 971-72 (7th Cir. 1972), rev’d on other grounds, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973). The delay is not, however, so inordinately lengthy that it requires an automatic dismissal. See Barker v. Wingo, supra (five-year delay; no denial of speedy trial); United States v. Larson, 555 F.2d 673, 675 (8th Cir. 1977) (fifteen-month delay; no denial of speedy trial); United States v. Smith, 552 F.2d 257, 262 (8th Cir. 1977) (twenty-one month delay; no denial of speedy trial); United States v. Crow Dog, 532 F.2d 1182, 1192-94 (8th Cir.), application for stay denied, 426 U.S. 917, 96 S.Ct. 2620, 49 L.Ed.2d 370 (1976) (twenty-two-month delay; no denial of speedy trial). The ten-month delay in this case is, however, long enough to require consideration of the other relevant factors. The reason for the delay. The District Court found that while the State of Arkansas was unaware that appellant had filed a writ of mandamus demanding a speedy trial and a waiver of extradition, its lack of knowledge “was attributable to the State’s failure to discover the petitioner’s writ.” While the District Court indicated it was difficult to understand the reasons for the State’s failure to discover appellant’s writ, it found that the State did not intentionally delay appellant’s trial. In Barker v. Wingo, supra, 407 U.S. at 531, 92 S.Ct. 2182, the Supreme Court recognized that negligence should be weighted less heavily against the state than a deliberate attempt by the government to delay the trial, but the ultimate responsibility for a delay caused by government negligence must rest with the state, id.; see Dickey v. Florida, 398 U.S. 30, 37-38, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970). The negligence of the state must be considered in light of its “constitutional duty to make a diligent, good-faith effort to bring” the accused to trial upon his demand even when he is incarcerated in another jurisdiction. Smith v. Hooey, 393 U.S. 374, 383, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969). This duty is particularly strong when the accused is incarcerated. Id. at 378-80," }, { "docid": "7476068", "title": "", "text": "or would be prejudice to the defense at trial. “[T]he major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused’s defense.” United States v. Marion, supra, at 320, 92 S.Ct. at 2195-2196. Barker, supra, 407 U.S. at 537-38, 92 S.Ct. at 2195. It is significant that the full Court later quoted with approval Justice White’s language preceding the above quotation: Moreover, prejudice to a defendant caused by delay in bringing him to trial is not confined to the possible prejudice to his defense in those proceedings. Inordinate delay, “wholly aside from possible prejudice to a defense on the merits may ‘seriously interfere with the defendant’s liberty, whether he is free on bail or not, and . . . may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.’ United States v. Marion, 404 U.S. 307, 320, [92 S.Ct. 455, 463, 30 L.Ed.2d 468] (1971). These factors are more serious for some than for others, but they are inevitably present in every case to some extent, for every defendant will either be incarcerated pending trial or on bail subject to substantial restrictions on his liberty.” Barker v. Wingo, supra, at 537, [92 S.Ct. at 2195] (White, J., concurring.) Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973) [per curiam). See also Strunk, aka Wagner v. United States, 412 U.S. 434, 439, 93 S.Ct. 2260, 2263, 37 L.Ed.2d 56 (1973) (“The speedy trial guarantee recognizes that a prolonged delay may subject the accused to an emotional stress that can be presumed to result in the ordinary person from uncertainties in the prospect of facing public trial . . . .”). It is also important to remember Justice Powell’s admonition that the four Barker factors have “no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.” Barker, supra, 407 U.S. at 533, 92 S.Ct. at 2193. The sensitive process of balancing is a task highly individualized by the circumstances" }, { "docid": "23432935", "title": "", "text": "trial is a relative question which depends on a weighing of the circumstances, United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966); Pollard v. United States, 352 U.S. 354, 361, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957). The essential elements to consider are the length of delay, the reason for it, the extent of prejudice, and whether or not the defendant has made specific demand for a speedy trial, United States v. Stein, 456 F.2d 844, 847 (2 Cir. 1972); United States v. Smalls, 438 F.2d 711 (2 Cir.), cert. denied, 403 U.S. 933, 91 S.Ct. 2261, 29 L.Ed.2d 712 (1971); United States ex rel. Solomon v. Mancusi, 412 F.2d 88, 90 (2 Cir.), cert. denied, 396 U.S. 936, 90 S.Ct. 269, 24 L.Ed.2d 236 (1969). It is the time between arrest and indictment, some thirteen months, which is pertinent, because the right to a speedy trial does not attach until a defendant has been arrested or has become an accused. As the Supreme Court said in United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971): “[I]t is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engages the particular protections of [the] speedy-trial provision of the Sixth Amendment.” The defendant makes no real claim of excessive post-indictment delay. As to the reason for delay, the Government asserts it was brought about by the defendant’s agreement to help in further narcotics investigations with the possibility that successful cooperation might lead to a dropping of charges. Singleton agrees that three months of the delay was the result of his offer to cooperate, but he claims that this offer was terminated during the spring of 1970. The United States Attorney claims that he postponed the seeking of an indictment pursuant to a request, dated June 9, 1970, from the Bureau of Narcotics and Dangerous Drugs until the Bureau notified him on January 26, 1971, that Singleton’s help had been unsatisfactory. The trial court found that the" }, { "docid": "11861701", "title": "", "text": "assertion of his right; and (4) prejudice to the defendant. The Court emphasized that it did not intend the list to be exhaustive nor any one factor dispositive and that other relevant circumstances should also be considered. Our analysis begins with the district court’s treatment of the prejudice factor. In its oral opinion denying Goldsmith’s motion to dismiss the indictment, the district court expressed its understanding of “prejudice” within the meaning of Barker: [B]y prejudice, I mean the impairment of the ability of the defendant to defend this case on the merits. ****** Nothing has been presented to me on which I could posit a finding [that] her ability to defend has been in any way impaired. No witness she says essential has died. No documents have been destroyed. Nothing has happened to make a trial held not less than fair to her. This reading of Barker, which confines “prejudice” to impairment to the defense, was explicitly rejected by the United States Supreme Court in Moore v. Arizona, 414 U.S. 25, 26-27, 94 S.Ct. 188, 189-190, 38 L.Ed.2d 183, 185-186 (1973) (per curiam). There the Court quoted approvingly from Justice White’s concurring opinion in Barker v. Wingo, supra, 407 U.S. at 537, 92 S.Ct. at 2195, 33 L.Ed.2d at 121: Inordinate delay “wholly aside from possible prejudice to a defense on the merits, may ‘seriously interfere with the defendant’s liberty, whether he is free on bail or not, and . . . may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.’ United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). These factors are more serious for some than for others, but they are inevitably present in every case to some extent, for every defendant will either be incarcerated pending trial or on bail subject to substantial restrictions on his liberty.” The majority in Barker also recognized that an accused is “disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion, and often" }, { "docid": "2368852", "title": "", "text": "Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), in which four factors are weighed: length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. As the Supreme Court noted, such a balancing test compels us to approach speedy trial cases on an ad hoc basis. Id. We turn first to a consideration of the prejudice that the defendant has experienced. In Barker, the Court noted that what constitutes prejudice should be assessed in light of the interests that the speedy trial right was designed to protect, and the Court identified three such interests: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Id. at 532, 92 S.Ct. at 2193. Of these three interests, however, only the second is of concern here. The first interest is not involved because the defendant was free on bail. As to the third interest, the defendant has never claimed, nor did the district court find, that his defense on the merits has been impaired. The speedy trial guarantee was designed to protect against “emotional stress that can be presumed to result in the ordinary person from uncertainties in the prospect of facing public trial ..” Strunk v. United States, 412 U.S. 434, 439, 93 S.Ct. 2260, 2263, 37 L.Ed.2d 56 (1973). See also Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973). However, in United States v. Annerino, 495 F.2d 1159, 1163-1164 (7th Cir. 1974), we stated that “conclusory allegations of general anxiety and depression . . . constitute a showing of only minimal prejudice of a kind normally attending criminal indictment,” and found that this prejudice alone does not result in a constitutional violation without “a better showing on the other factors [length of delay and reason for delay] . . . .” See also United States v. DeTienne, 468 F.2d 151, 158 (1972), cert. denied 410 U.S. 911, 93 S.Ct. 974, 35 L.Ed.2d 274 (1973). The defendant here," }, { "docid": "11812873", "title": "", "text": "that a delayed trial caused a witness's inability to recall certain events and that prejudice resulted from the unspecified \" 'erosion of exculpatory evidence and testimony' \"). . 666 F.2d 241, 245 (5th Cir.1982) (quoting United States v. Edwards, 577 F.2d 883, 889 (5tli Cir.1978)). . Goodrum, 2005 WL 2592219, at *4. . Goodrum, 2006 WL 3420245, at *9. . See Doggett, 505 U.S. at 654, 112 S.Ct. at 2692. .See, e.g., Moore v. Arizona, 414 U.S. 25, 27-28, 94 S.Ct. 188, 190, 38 L.Ed.2d 183 (1973) (per curiam) (emphasizing that prejudice in the speedy trial context is “not confined to the possible prejudice to [the] defense” but includes, among other things, the defendant’s anxiety); United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971) (explaining that \"the major evils pro- . tected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused’s defense” and mentioning anxiety of the accused as one of potential threats of a delayed trial). . 393 U.S. 374, 379, 89 S.Ct. 575, 577, 21 L.Ed.2d 607 (1969). . Id., 89 S.Ct. at 578 (internal quotation marks omitted). . Cf. Jamerson, 666 F.2d at 244 (\"[I]n view of the pending death sentence, an outstanding armed robbery indictment could occasion little additional anxiety or concern.”). . 393 U.S. at 377, 89 S.Ct. at 576-77. . See id. at 377-80, 89 S.Ct. at 576-78. . Id. at 378, 89 S.Ct. at 577 (footnote omitted). . Id. at 383, 89 S.Ct. at 579-80. . Goodrum, 2005 WL 2592219, at *4 n. 2. . Id. . See, e.g., Strunk v. United States, 412 U.S. 434, 439, 93 S.Ct. 2260, 2263, 37 L.Ed.2d 56 (1973); see also Moore, 414 U.S. at 27, 94 S.Ct. at 190. . Goodrum, 2006 WL 3420245, at *9. . 393 U.S. at 378, 89 S.Ct. at 577. . See Moore, 414 U.S. at 27, 94 S.Ct. at 190 (citing interference with liberty, disruption of employment, financial loss, and curtailment of associations as forms of prejudice apart from harm to a defendant’s case (quoting" }, { "docid": "8383703", "title": "", "text": "and how a defendant asserts his right” can and should be considered when making the balancing test. Id. at 531 — 532, 92 S.Ct. at 2192. Here we are satisfied that this factor must be weighed against Morris. See United States v. Ackerson, 502 F.2d 300, 303 (8th Cir. 1974). The final factor to be considered, prejudice to the defendant, is discussed in Barker as encompassing three interests which the right to a speedy trial was designed to protect: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Barker v. Wingo, supra, 407 U.S. at 532, 92 S.Ct. at 2192. (Footnote omitted.) During all the relevant times involved herein Morris was in prison serving the 18-year sentence which was affirmed June 8, 1970. This does not mean that he could not still suffer from undue and oppressive incarceration prior to trial for he could lose the chance of a partially concurrent sentence, his conditions of confinement could worsen, he could lose opportunities for parole, and the prospect of rehabilitation may be adversely affected by a pending criminal trial. Moore v. Arizona, 414 U.S. 25, 27, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973); Strunk v. United States, 412 U.S. 434, 439, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973); Smith v. Hooey, 393 U.S. 374, 378, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969). However, Morris makes no assertion that any of these possible adverse effects actually occurred. The fact that the 25-year sentence given in this case is to run consecutively to the earlier 18-year sentence which had been affirmed in June, 1970, shows that Morris lost no chance for a concurrent sentence or early parole. The record reveals no other signs of oppressive pretrial incarceration. Anxiety and concern of the accused are undoubtedly present to some degree in every case. Arrant v. Wainwright, supra, 468 F.2d at 682. However, that alone does not establish prejudice where, as here, the defendant neither asserts nor shows that the delay weighed particularly heavily on him in" } ]

[ { "docid": "17003259", "title": "", "text": "a scheme to defraud a bank, in violation of 18 U.S.C. §§ 1344, 2 (1988) (Counts 2-3); willful misapplication by a bank officer, in violation of 18 U.S.C. §§ 656, 2 (1988) (Counts 4-6); money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(A)®, 2 (1988) (Counts 7-9); knowingly making false entries in bank documents, in violation of 18 U.S.C. § 1005 (1988) (Count 10); and perjury before a grand jury, in violation of 18 U.S.C. § 1623(a) (1988) (Counts 11-12). Restivo was convicted on eleven of the twelve counts of the indictment. He was sentenced to a prison term of 100 months, followed by three years of supervised release. On appeal, Restivo contends that: (a) the district court denied his counsel the opportunity to effectively cross-examine Delehamps, a key government witness; (b) the district court’s jury instruction regarding the money laundering counts constructively amended the indictment; and (e) the evidence was insufficient to support his convictions on Counts 3, 7, 8, and 9 of the indictment. II A Restivo first contends that the district court denied his counsel the opportunity to effectively cross-examine Delchamps, by limiting cross-examination on the following subjects: (1) whether a “cap” existed on Del-champ’s sentence as a result of his plea agreement; (2) whether the government had to agree that Delchamps was telling the truth before it filed a substantial assistance letter on his behalf; and (3) whether Del-champs pled guilty to spare his daughter and son-in-law from prosecution. “While the scope of cross-examination is within the discretion of the trial judge, this discretionary authority comes into play only after there has been permitted as a matter of right sufficient cross-examination to satisfy the Sixth Amendment.” The Confrontation Clause of the Sixth Amendment is satisfied where defense counsel has been “permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, .could appropriately draw inferences relating to the reliability of the witness.” To demonstrate an abuse of discretion, Restivo must show that the limitations imposed upon his counsel’s cross-examination were clearly prejudicial. Notwithstanding the district court’s restrictions on" } ]

[ { "docid": "3673909", "title": "", "text": "years later, Diaz was stopped for a traffic violation. The officer arrested Diaz after learning of the outstanding warrant issued in connection with the drug charge. His jury trial began in January 2010. He was found guilty and sentenced to 121 months of imprisonment. A timely appeal followed. DISCUSSION I. Limitations of Cross-Examination Diaz argues that his Sixth Amendment right to confrontation was violated when the district court did not permit him to cross-examine witnesses about alternate explanations for his presence during the drug transaction. Diaz contends that he could not cross-examine two witnesses, Drug Enforcement Special Agent Luis De La Cruz and Officer Donnie Morton of the Fort Worth Police Department, about his status as an illegal immigrant or his employment at Brian’s Auto Sales. This testimony allegedly would have been relevant to witness credibility and the adequacy of the government’s investigation. We review alleged violations of the Confrontation Clause of the Sixth Amendment de novo, applying a harmless error analysis. United States v. Jimenez, 464 F.3d 555, 558 (5th Cir.2006). Where there is no constitutional violation, we will not find an abuse of the trial court’s discretion absent “a showing that the limitations were clearly prejudicial.” United States v. Skelton, 514 F.3d 433, 438 (5th Cir.2008) (citation omitted). The Confrontation Clause guarantees a defendant’s right to cross-examine his accusers. Jimenez, 464 F.3d at 559. The right is not unlimited. Id. What is required is that defense counsel be “permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” United States v. Hitt, 473 F.3d 146, 156 (5th Cir.2006) (citation omitted). The district court has discretion to place reasonable limits on “a criminal defendant’s right to cross-examine a witness 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.” Id. (quotation marks and citations omitted). To determine if a Sixth Amendment violation has occurred, we inquire into “whether the jury had sufficient information to" }, { "docid": "7115470", "title": "", "text": "jury: A separate crime is charged against one or more of the defendants in each count of the indictment. Each count and the evidence pertaining to it should be considered separately. The case of each defendant should be considered separately and individually. The fact that you may find one or more of the accused guilty or not guilty of any of the crimes charged should not control your verdict as to any other crime or any other defendant. You must give separate considerations to the evidence as to each defendant. We have held that instructions almost identical to those given here are sufficient to cure any prejudice from the joinder of defendants or offenses. See Mann, 161 F.3d at 862. Indeed, the jury followed those instructions: Bernegger was acquitted on two counts, as was Finch. As this court has previously said, “the acquittal of all the defendants on one or more counts ‘supports the inference that the jury considered separately the evidence as to each defendant and each count.’ ” Id. (footnote omitted) (quoting United States v. Faulkner, 17 F.3d 745, 759 (5th Cir.1994)). In sum, the district court did not commit plain error by not severing Count 6. B. Bernegger next argues that the district court violated the Confrontation Clause of the Sixth Amendment when it denied him the opportunity to cross-examine Donnie Kisner, an investor in CPI, about an alleged discrepancy in his testimony. This claim is reviewed de novo, subject to a harmless error analysis. United States v. Jimenez, 464 F.3d 555, 558 (5th Cir.2006). If no Sixth Amendment violation occurred, we review the limitations on cross-examination for an abuse of discretion. Id. at 558-59. We will not find an abuse of discretion “absent a showing that the limitations were clearly prejudicial.” United States v. Diaz, 637 F.3d 592, 597 (5th Cir.2011) (internal quotation marks omitted). While the Sixth Amendment guarantees the right of a defendant to cross-examine witnesses against him, that right is not unlimited. Jimenez, 464 F.3d at 558. “[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits" }, { "docid": "11581231", "title": "", "text": "court made findings regarding his truthfulness during the first trial. The district court permitted Dvorin’s counsel to question Derrington about his answers to the questions that were asked of him during the first trial and whether he answered those questions truthfully, but would not allow him to question or introduce evi dence regarding the district court’s findings. Dvorin asserts that the district court’s ruling disallowing extrinsic evidence of and cross-examination regarding its findings as to Derrington’s truthfulness in -the first trial violated the Confrontation Clause of the Sixth Amendment ahd' Federal Rules of Evidence 608 and 403. “We review alleged violations of a defendant’s Sixth Amendment confrontation right de novo[,]” but “[s]uch claims ... are subject to harmless error review.” United States v. Skelton, 514 F.3d 433, 438 (5th Cir.2008) (citing United States v. Bell, 367 F.3d 452, 465 (5th Cir.2004)). Absent a constitutional violation, we review a district court’s evidentiary decisions and limitations on cross-examination for an abuse of discretion, which requires the defendant to show that the district court’s evidentiary rulings were clearly prejudicial. Id. “[T]he Confrontation Clause • does not guarantee defendants cross-examination to whatever extent they desire.” Bigby v. Dretke, 402 F.3d 551, 573 (5th Cir.2005). The right to confrontation focuses, fundamentally, on whether the district court’s exclusion “significantly undermined fundamental elements of the defendant’s defense.” United States v. Scheffer, 523 U.S. 303, 315, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998). The circumstances of this case do not permit the conclusion that Dvorin’s ability to put on his defense was undermined by the district court’s ■ holding. The only evidence Dvorin was deprived of was the fact that the district court made tentative findings thát Derrington’s prior testimony was not truthful, and the district court was within its right to ■ impose limits on Dvorin’s cross-examination of Derrington based on the prejudice that would result from the jury learning of the district court’s findings. See Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). Accordingly, we hold that the district court did not violate Dvorin’s Sixth Amendment right in excluding" }, { "docid": "13770112", "title": "", "text": "in the fair and efficient administration of justice, and the potential prejudice to the truth-determining function of the trial process.” United States v. Mizell, 88 F.3d 288, 294 (5th Cir.1996) (alteration in original, internal quotation marks and citations omitted). A trial court’s restrictions in this respect are reviewed for harmless error. See id. at 295. Similar principles apply to the rights guaranteed to criminal defendants under the Sixth Amendment’s Confrontation Clause: The Supreme Court has recognized that trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on cross-examinations based on among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant. The relevant inquiry is whether the jury had sufficient information to appraise the bias and motives of the witness. United States v. Tansley, 986 F.2d 880, 886 (5th Cir.1993) (internal citation omitted). “A district court’s limitation of cross-examination of a witness is reviewed for abuse of discretion. Abuse-of-discretion review is only invoked if the limitation did not curtail the defendant’s Sixth Amendment right to confront witnesses. Whether a defendant’s Sixth Amendment rights were violated is reviewed de novo.” United States v. Hitt, 473 F.3d 146, 155-56 (5th Cir.2006) (internal citation omitted). Thus, the rights guaranteed by the Sixth Amendment are substantial but are not independent of the trial court’s duty to ensure a fair trial. See Taylor v. Illinois, 484 U.S. 400, 410-13, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988). In connection with the defendants’ assertion of their Sixth Amendment rights, Aldrete-Davila invoked his Fifth Amendment privilege against self-incrimination on cross-examination and refused to answer certain questions posed to him by the defendants. When these two constitutional rights intersect, “[a] valid assertion of the witness’ Fifth Amendment rights justifies a refusal to testify despite the defendant’s Sixth Amendment rights.” United States v. Goodwin, 625 F.2d 693, 700 (5th Cir.1980). Further, the district court has broad discretion in evaluating a witness’s claim of privilege under the Fifth Amendment. See United States v. Hernandez, 962 F.2d 1152, 1161 (5th Cir.1992). At the outset of" }, { "docid": "13108822", "title": "", "text": "United States v. El liott, 571 F.2d 880, 908 (5th Cir.1978). As the Supreme Court has emphasized: Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness’ story to test the witness’ perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness .... A more particular attack on the witness’ credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial, and is always relevant as discrediting the witness and affecting the weight of his testimony. We have recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) (internal quotations marks and citations omitted). This right “is particularly important when the witness is critical to the prosecution’s case.” Jimenez, 464 F.3d at 559 (quoting United States v. Mizell, 88 F.3d 288, 293 (5th Cir.1996)). However, “the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985) (per curiam) (emphasis in original); see also Bigby v. Dretke, 402 F.3d 551, 573 (5th Cir.2005) (“[T]he Confrontation Clause does not guarantee defendants cross-examination to whatever extent they desire.”). The district court has “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," }, { "docid": "19191071", "title": "", "text": "that he saw Jimenez distributing drugs. She explains that because her cross-examination was limited by the district court, she could not test whether Lopez was in a position to see clearly the alleged drug transactions, whether there were any obstructions that impeded his view, or whether he fabricated his testimony. She contends that to assume, as the district court did, that Lopez would testify truthfully that he had an unobstructed view is to ignore the purpose of the Confrontation Clause. Finally, Jimenez argues that the denial of her right to test Lopez’s credibility was not harmless error. The Government argues that the district court did not abuse its discretion in limiting Jimenez’s cross-examination of Lopez. It asserts that the question whether there were obstructions to Lopez’s view was fully developed at trial. According to the Government, the district court noted correctly that the relevant question is not where Lopez was located, but whether there were obstructions in his line of sight. In the alternative, the Government argues that, given the strength of the evidence, any Sixth Amendment violation was harmless; even if Jimenez had established through cross-examination that Lopez’s exact location was obstructed, there was overwhelming evidence that she conspired to possess cocaine with intent to distribute and aided and abetted the possession of cocaine with intent to distribute, as alleged in the indictment. 2. Standard of Review “Alleged violations of the Confrontation Clause [of the Sixth Amendment] are reviewed de novo, but are subject to a harmless error analysis.” United States v. Bell, 367 F.3d 452, 465 (5th Cir.2004). If there is no Sixth Amendment violation, this court addresses whether the district court abused its discretion by limiting cross-examination. United States v. Restivo, 8 F.3d 274, 278 (5th Cir.1993). 3. Was There a Sixth Amendment Violation? The Confrontation Clause guarantees a criminal defendant the right to cross-examine the witnesses against him. See Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Indeed, it “is the principal means by which the believability of a witness and the truth of his testimony are tested.” Id. at" }, { "docid": "7115471", "title": "", "text": "States v. Faulkner, 17 F.3d 745, 759 (5th Cir.1994)). In sum, the district court did not commit plain error by not severing Count 6. B. Bernegger next argues that the district court violated the Confrontation Clause of the Sixth Amendment when it denied him the opportunity to cross-examine Donnie Kisner, an investor in CPI, about an alleged discrepancy in his testimony. This claim is reviewed de novo, subject to a harmless error analysis. United States v. Jimenez, 464 F.3d 555, 558 (5th Cir.2006). If no Sixth Amendment violation occurred, we review the limitations on cross-examination for an abuse of discretion. Id. at 558-59. We will not find an abuse of discretion “absent a showing that the limitations were clearly prejudicial.” United States v. Diaz, 637 F.3d 592, 597 (5th Cir.2011) (internal quotation marks omitted). While the Sixth Amendment guarantees the right of a defendant to cross-examine witnesses against him, that right is not unlimited. Jimenez, 464 F.3d at 558. “[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination [regarding a witness’s motivation to testify] 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). “What is required is that defense counsel be ‘permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.’ ” Diaz, 637 F.3d at 597 (quoting United States v. Hitt, 473 F.3d 146, 156 (5th Cir.2006) (citation omitted)). To determine if a Sixth Amendment violation has occurred, we inquire into “whether the jury had sufficient information to appraise the bias and motives of the witness.” United States v. Tansley, 986 F.2d 880, 886 (5th Cir.1993). During cross-examination, Kisner revealed that he was involved in an ongoing project involving processing waste with David Cooper, an investor who had also worked as a chemist with Finch and Bernegger. Kisner" }, { "docid": "2714452", "title": "", "text": "complains that his right to confrontation, U.S. Const. amend. VI, was violated when the district court limited his cross-examination of witness Abbott. In particular, appellant sought to impeach Abbott's credibility with respect to his testimony that Haimowits had instigated many of the illegal acts, by demonstrating that Abbott had previously engaged in the execution of fraudulent documents in Huntsville, Alabama, involving a lawyer and his secretary. Appellant also complains that efforts to cross-examine Abbott on matters relating to (1) the source of monies invested in the restaurant venture, (2) prior fraudulent bank loans involving Abbott, and (3) governmental protection of Abbott’s assets from judgment creditors were either prohibited or severely limited by the district court. Serious restrictions of a defendant’s right to cross-examine a witness can eviscerate the defendant’s sixth amendment right to confront adverse witnesses and compel the reversal of a conviction. United States v. Berkowitz, 662 F.2d 1127, 1138 (5th Cir.1981) (citing Davis v. Alaska, 415 U.S. 308, 315-18, 94 S.Ct. 1105, 1109-10, 39 L.Ed.2d 347 (1974)). Although the extent of cross-examination on an appropriate subject is within the sound discretion of the trial court and will not be disturbed on review unless there is abuse of such discretion, there is “a sphere which a trial judge may not impinge, for the ‘discretionary authority to limit cross-examination comes into play only after there has been permitted as a matter of right sufficient cross-examination to satisfy the Sixth Amendment.’ ” United States v. Tolliver, 665 F.2d 1005, 1008 (11th Cir.) (quoting United States v. Elliott, 571 F.2d 880, 908 (5th Cir.), cert. denied sub nom. Hawkins v. United States, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344 (1978)), cert. denied, 456 U.S. 935, 102 S.Ct. 1991, 72 L.Ed.2d 455 (1982). We have carefully examined the record and conclude that the district court gave the appellant ample opportunity to cross-examine Abbott and expose facts from which the jury could draw fair inferences regarding Abbott’s credibility. The district court limited detailed excursions into collateral matters; this was a proper exercise of the district court’s discretion and did not deprive the" }, { "docid": "2714453", "title": "", "text": "an appropriate subject is within the sound discretion of the trial court and will not be disturbed on review unless there is abuse of such discretion, there is “a sphere which a trial judge may not impinge, for the ‘discretionary authority to limit cross-examination comes into play only after there has been permitted as a matter of right sufficient cross-examination to satisfy the Sixth Amendment.’ ” United States v. Tolliver, 665 F.2d 1005, 1008 (11th Cir.) (quoting United States v. Elliott, 571 F.2d 880, 908 (5th Cir.), cert. denied sub nom. Hawkins v. United States, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344 (1978)), cert. denied, 456 U.S. 935, 102 S.Ct. 1991, 72 L.Ed.2d 455 (1982). We have carefully examined the record and conclude that the district court gave the appellant ample opportunity to cross-examine Abbott and expose facts from which the jury could draw fair inferences regarding Abbott’s credibility. The district court limited detailed excursions into collateral matters; this was a proper exercise of the district court’s discretion and did not deprive the defendant of his rights to confrontation. See United States v. Cohen, 631 F.2d 1223, 1226 (5th Cir.1980). The appellant was able to - achieve his desired purpose of impeaching Abbott’s testimony despite specific restrictions placed on his cross-examination by the trial court. See United States v. Lewis, 676 F.2d 508, 512 (11th Cir.), cert. denied, -U.S.-, 103 S.Ct. 313, 74 S.Ct. 291 (1982). Appellant’s claim that the trial court “constant[ly] limit[ed]” his cross-examination of Abbott is not supported by the record. III. DENIAL OF SURREBUTTAL Appellant’s third specification of error is that the district court committed prejudicial error in refusing to allow the defendant the opportunity to find and present good character witnesses in surrebuttal to counter the character testimony of two listed government witnesses presented in rebuttal. Appellant had taken the witness stand to deny the allegations of his involvement in the loan scheme. The government called two witnesses in rebuttal, Herbert Scanning, a Jacksonville attorney who had known the appellant for ten years, and Thomas D. Treece, a Jacksonville attorney who had previously" }, { "docid": "13108821", "title": "", "text": "novo.”). Such claims, however, are subject to harmless error review. Bell, 367 F.3d at 465; see also United States v. Jimenez, 464 F.3d 555, 558 (5th Cir.2006). If there is no constitutional violation, then we review a district court’s limitations on cross-examination for an abuse of discretion, which requires a showing that the limitations were clearly prejudicial. Jimenez, 464 F.3d at 558-59 (citing United States v. Restivo, 8 F.3d 274, 278 (5th Cir.1993)). Finally, we review the refusal to give a defense-tendered jury instruction for abuse of discretion. United States v. Correa-Ventura, 6 F.3d 1070, 1076 (5th Cir.1993). III. ANALYSIS A. Cross-Examination of Jacobs Skelton argues that the district court erred in limiting his ability to cross-examine Jacobs and otherwise present evidence regarding the allegations that Jacobs stole from Jolt and lied to the IRS. “While the scope of cross-examination is within the discretion of the trial judge, this discretionary authority to limit cross-examination comes into play only after there has been permitted as a matter of right sufficient cross-examination to satisfy the Sixth Amendment.” United States v. El liott, 571 F.2d 880, 908 (5th Cir.1978). As the Supreme Court has emphasized: Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness’ story to test the witness’ perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness .... A more particular attack on the witness’ credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial, and is always relevant as discrediting the witness and affecting the weight of his testimony. We have recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected" }, { "docid": "23322975", "title": "", "text": "the Government made the records available in a timely manner and to the district court’s — ■ and this court’s — satisfaction. The admission of the records did not constitute reversible error, and any complained-of potential error would be harmless. No error that could conceivably affect Ledesma’s rights is discernible. As such, the admission of the phone records, and their timeliness, does not constitute reversible error. C. Macias alleges that the district court erred in admitting, over objection, phone calls and transcripts of calls, in violation of his rights under the Confrontation Clause. Macias avers that the statements elicited from these calls were out-of-court hearsay. The Government argues that the district court’s admission of the phone calls and transcripts of calls did not violate Macias’s rights under the Confrontation Clause because testimony reasonably established the identities of the participants on the call. Moreover, the Government alleges that because the calls in question did not implicate Macias, he had no Confrontation Clause rights related to the exhibits. We review challenges based on the Confrontation Clause de novo. United States v. Bell, 367 F.3d 452, 465 (5th Cir. 2004). In the absence of a Sixth Amendment violation, we review the limitation for an abuse of discretion. United States v. Jimenez, 464 F.3d 555, 558-59 (5th Cir. 2006). “A defendant’s right to cross-examine witnesses against him is a ... right secured by the Confrontation Clause of the Sixth Amendment.” United States v. Davis, 393 F.3d 540, 548 (5th Cir.2004) (citing United States v. Mayer, 556 F.2d 245, 248 (5th Cir.1977)). It thus follows that a judge’s discretionary authority “comes into play only after there has been permitted as a matter of right sufficient cross examination to satisfy the Sixth Amendment.” United States v. Restivo, 8 F.3d at 274, 278 (5th Cir.1993) (internal citations and quotations omitted). The Confrontation Clause is satisfied when defense counsel has been allowed to expose the jury to facts from which the jury could appropriately draw inferences relating to the reliability of the witness. Id. To demonstrate an abuse of discretion, the defendant must show that the limitation was" }, { "docid": "1701245", "title": "", "text": "S.Ct. 198, 107 L.Ed.2d 152 (1989). Roussel invited any erroneous Rule 404(b) instruction by injecting the evidence of the 1997 incident into the case. Now that he has lost this risky bet, he attempts to demonstrate that the district court’s instruction was improper all along. On appeal, he asserts a new and inapplicable argument that “[t]he other acts—unsubstantiated, fourteen-year-old misconduct allegations against Mr. Roussel—were dissimilar from the charged offense, were remote in time, and had no proper bearing on Mr. Rous-sel’s guilt for the charged offense.” Rous-sel Reply Br. at 23. Indeed, it appears that he is now making a typical 404(b) argument that the evidence should never have been introduced in the first place. Given that he requested the introduction of the evidence, however, he invited any error in the issuance of the instruction. III. Whether the district court erred in limiting Roussel’s counsel’s cross-examination of Branch regarding Branch’s plea agreement, and, if so, whether that error violated Roussel’s right to confront his accuser. A. Standard of Review A constitutional question merits de novo review. See United States v. Asibor, 109 F.3d 1023, 1037 (5th Cir.1997). Once the Confrontation Clause of the Sixth Amendment has been satisfied, limitation of cross-examination is reviewed for abuse of discretion. United States v. Davis, 393 F.3d 540, 548 (5th Cir.2004). B. Analysis Reviewing the constitutional question de novo, there was no violation of Roussel’s Sixth Amendment right to confront his accuser. Beyond that, reviewing the limitation of Roussel’s counsel’s cross-examination of Branch for any other impropriety, the district court did not abuse its discretion. Roussel argues that his Sixth Amendment right to confront his accuser was violated and that the district court’s limitation on his counsel’s cross-examination of Branch about Branch’s actual exposure under the guidelines was otherwise improper. “While the scope of cross-examination is within the discretion of the trial judge, this discretionary authority comes into play only after there has been permitted as a matter of right sufficient cross-examination to satisfy the Sixth Amendment.” United States v. Restivo, 8 F.3d 274, 278 (5th Cir.1993). The Sixth Amendment’s Confrontation Clause is violated" }, { "docid": "22140450", "title": "", "text": "United States v. Jimenez, 464 F.3d 555, 558 (5th Cir.2006). If there is no constitutional violation, this court reviews any limitation on a defendant’s right of cross-examination for abuse of discretion. Id. at 558-59. We will not find an abuse of discretion unless the limitations were clearly prejudicial. El-Mezain, 664 F.3d at 491. We review a district court’s evi-dentiary rulings for abuse of discretion subject to a harmless error analysis. George, 201 F.3d at 372. We examine the trial testimony to determine whether there was a violation of a defendant’s right to confront the witnesses against him. Jimenez, 464 F.3d at 559. The record reflects an extensive cross-examination of Cody. To the extent the district court excluded testimony about the specifics of the custody case, this does not amount to a violation of Tuma’s constitutional rights. It was well within the district court’s discretion to impose this reasonable limit. See United States v. Diaz, 637 F.3d 592, 597 (5th Cir.2011) (stating that a district court has discretion “to place reasonable limits on a criminal defendant’s right to cross-examine a witness 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” (internal quotation marks and citation omitted)). Between Tuma and Cody’s testimony the jury had sufficient information to appraise Cody’s bias and motives to testify against his father. See id. (stating that this court looks into “whether the jury had sufficient information to appraise the bias and motives of the witness” (internal quotation marks and citation omitted)). The jury knew that there was a custody dispute between Cody and his ex-wife Kristin and that Tuma supported Kristin in the dispute and refused to assist his son. Further, there was no abuse of discretion by the district court when it did not admit the letter or allow cross-examination on it. The letter’s probative value was outweighed by the danger of unfair prejudice, misleading the jury, and wasting time. These are appropriate reasons for excluding the letter. Fed.R.Evid. 403. As substantive evidence, it would have been impermissible and" }, { "docid": "1701246", "title": "", "text": "review. See United States v. Asibor, 109 F.3d 1023, 1037 (5th Cir.1997). Once the Confrontation Clause of the Sixth Amendment has been satisfied, limitation of cross-examination is reviewed for abuse of discretion. United States v. Davis, 393 F.3d 540, 548 (5th Cir.2004). B. Analysis Reviewing the constitutional question de novo, there was no violation of Roussel’s Sixth Amendment right to confront his accuser. Beyond that, reviewing the limitation of Roussel’s counsel’s cross-examination of Branch for any other impropriety, the district court did not abuse its discretion. Roussel argues that his Sixth Amendment right to confront his accuser was violated and that the district court’s limitation on his counsel’s cross-examination of Branch about Branch’s actual exposure under the guidelines was otherwise improper. “While the scope of cross-examination is within the discretion of the trial judge, this discretionary authority comes into play only after there has been permitted as a matter of right sufficient cross-examination to satisfy the Sixth Amendment.” United States v. Restivo, 8 F.3d 274, 278 (5th Cir.1993). The Sixth Amendment’s Confrontation Clause is violated if “the defendant [can] show that a reasonable jury might have had a significantly different impression of the witness’s credibility if defense counsel had been allowed to pursue the questioning.” Davis, 393 F.3d at 548. In Davis, we ruled that there was no Sixth Amendment violation or abuse of discretion regarding the court’s limitation on cross-examination because defense counsel was able to elicit information on the effect of a plea agreement on the dismissal of the indictment against the witness. Davis, 393 F.3d at 547-48. Additionally, in Restivo, we held that there was no Sixth Amendment violation or abuse of discretion regarding the court’s limitation on cross-examination because defense counsel had elicited sufficient testimony to infer the witness’s bias. Restivo, 8 F.3d at 278. Roussel argues that his counsel was unable to question Branch about Branch’s actual exposure under the guidelines or further benefits that Branch may receive through his cooperation. Nevertheless, the jury had more than enough information to infer Branch’s potential bias in testifying against Roussel, including Branch’s maximum statutory penalty on the" }, { "docid": "22140449", "title": "", "text": "The district court limited both Cody’s and Tuma’s testimony relating to a custody case against Cody’s current wife brought by his ex-wife. Specifically, the district court excluded testimony about the particular abuse allegations, but allowed testimony concerning Tuma’s refusal to give Cody money to find a lawyer for the custody dispute. The district court excluded a letter the defense sought to introduce that Cody’s current wife had written him under Federal Rules of Evidence 403 and 608(b). The district court struck, without any argument from the defense, two defense witnesses, Cody’s ex-wife and his current wife, because it believed each would testify about the custody dispute — a domestic matter that had nothing to do with the illegal discharges. On a motion to reconsider the denial of Tuma’s motion for a new trial, the defense submitted an affidavit from Cody’s ex-wife that she would have testified to facts that allegedly impeached Cody’s statéd reasons for testifying against Tuma. We review alleged constitutional violations of the confrontation clause de novo, subject to a harmless error analysis. United States v. Jimenez, 464 F.3d 555, 558 (5th Cir.2006). If there is no constitutional violation, this court reviews any limitation on a defendant’s right of cross-examination for abuse of discretion. Id. at 558-59. We will not find an abuse of discretion unless the limitations were clearly prejudicial. El-Mezain, 664 F.3d at 491. We review a district court’s evi-dentiary rulings for abuse of discretion subject to a harmless error analysis. George, 201 F.3d at 372. We examine the trial testimony to determine whether there was a violation of a defendant’s right to confront the witnesses against him. Jimenez, 464 F.3d at 559. The record reflects an extensive cross-examination of Cody. To the extent the district court excluded testimony about the specifics of the custody case, this does not amount to a violation of Tuma’s constitutional rights. It was well within the district court’s discretion to impose this reasonable limit. See United States v. Diaz, 637 F.3d 592, 597 (5th Cir.2011) (stating that a district court has discretion “to place reasonable limits on a criminal defendant’s" }, { "docid": "19191072", "title": "", "text": "Sixth Amendment violation was harmless; even if Jimenez had established through cross-examination that Lopez’s exact location was obstructed, there was overwhelming evidence that she conspired to possess cocaine with intent to distribute and aided and abetted the possession of cocaine with intent to distribute, as alleged in the indictment. 2. Standard of Review “Alleged violations of the Confrontation Clause [of the Sixth Amendment] are reviewed de novo, but are subject to a harmless error analysis.” United States v. Bell, 367 F.3d 452, 465 (5th Cir.2004). If there is no Sixth Amendment violation, this court addresses whether the district court abused its discretion by limiting cross-examination. United States v. Restivo, 8 F.3d 274, 278 (5th Cir.1993). 3. Was There a Sixth Amendment Violation? The Confrontation Clause guarantees a criminal defendant the right to cross-examine the witnesses against him. See Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Indeed, it “is the principal means by which the believability of a witness and the truth of his testimony are tested.” Id. at 316, 94 S.Ct. 1105. The right to cross-examination “is particularly important when the witness is critical to the prosecution’s case.” United States v. Mizell, 88 F.3d 288, 293 (5th Cir.1996). “[T]he cross-examiner is ... permitted to delve into the witness’ story to test the witness’ perceptions and memory, [and] ... has traditionally been allowed to impeach, i.e., discredit, the witness.” Davis, 415 U.S. at 316, 94 S.Ct. 1105. The right to cross examine, however, is not unlimited, but depends on the circumstances of the case. Bigby v. Dretke, 402 F.3d 551, 573 (5th Cir.2005) (explaining that defendants are not guaranteed “cross-examination to whatever extent they desire”). Therefore, the only way we can accurately determine if Jimenez’s Sixth Amendment right to confrontation was violated in this case is to turn to Lopez’s trial testimony. The record reflects that Lopez began his testimony on direct by explaining that he had received information from a long-time confidential informant regarding activities at 3602 Olive Street, Jimenez’s residence. Lopez stated that as a result of these tips, he conducted surveillance" }, { "docid": "23322976", "title": "", "text": "novo. United States v. Bell, 367 F.3d 452, 465 (5th Cir. 2004). In the absence of a Sixth Amendment violation, we review the limitation for an abuse of discretion. United States v. Jimenez, 464 F.3d 555, 558-59 (5th Cir. 2006). “A defendant’s right to cross-examine witnesses against him is a ... right secured by the Confrontation Clause of the Sixth Amendment.” United States v. Davis, 393 F.3d 540, 548 (5th Cir.2004) (citing United States v. Mayer, 556 F.2d 245, 248 (5th Cir.1977)). It thus follows that a judge’s discretionary authority “comes into play only after there has been permitted as a matter of right sufficient cross examination to satisfy the Sixth Amendment.” United States v. Restivo, 8 F.3d at 274, 278 (5th Cir.1993) (internal citations and quotations omitted). The Confrontation Clause is satisfied when defense counsel has been allowed to expose the jury to facts from which the jury could appropriately draw inferences relating to the reliability of the witness. Id. To demonstrate an abuse of discretion, the defendant must show that the limitation was clearly prejudicial. Id. Put differently, a defendant must show that a reasonable jury might have had a significantly different impression of witness credibility if defense counsel had been allowed to pursue the questioning. United States v. Maceo, 947 F.2d 1191, 1200 (5th Cir.1991). Here, the evidence to which Macias objects is the admission of recorded conversations between Losoya and other unidentified persons, purportedly in furtherance of the conspiracy. He claims that the lack of identity of those speaking with Losoya would render impossible his ability to confront and examine such persons. Macias’s argument fails for a number of reasons. First, the calls do not implicate Macias, instead they implicate Losoya. In fact, Macias does not even contend that the calls implicate him. The Sixth Amendment guarantees the right to confrontation against a party testifying against him, not against others. Put differently, the violation (if any) offends Losoya’s rights, and it was Losoya’s duty to bring the action to remedy the violation of his rights. Thus, Macias does not have any basis to allege a violation." }, { "docid": "19090558", "title": "", "text": "a ride without expectation of compensation and that there was no evidence that he was involved in a prearranged plan to bring Garay-Ramirez into the United States or that he knew GarayRamirez’s entry was unlawful. In order to establish Tirado-Tirado’s knowledge or reckless disregard of the fact that GarayRamirez’s entry was unlawful, the government pointed out that Tirado-Tirado appeared nervous at inspection, that Tirado-Tirado falsely stated at inspection that he and Garay-Ramirez were longtime friends, and that Tirado-Tirado picked Garay-Ramirez up in front of the church, the prearranged meeting place, and drove directly to the border without speaking to him. The government also noted Tirado-Tirado’s prior conviction for transporting aliens. The jury found Tirado-Tirado guilty. The district court sentenced Tirado-Tirado to ten months in prison and a three-year term of supervised release. Tirado-Tirado filed a timely notice of appeal. II. Standard of Review This court reviews a Confrontation Clause challenge de novo. United States v. Alvarado-Valdez, 521 F.3d 337, 341 (5th Cir.2008). Such claims, however, are subject to harmless error review. Id.; see also United States v. Jimenez, 464 F.3d 555, 558 (5th Cir.2006); United States v. Bell, 367 F.3d 452, 465 (5th Cir.2004). III. Whether There Was a Violation of the Confrontation Clause The Confrontation Clause of the Sixth Amendment states that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. Amend. VI. In Crawford v. Washington, 541 U.S. 36, 53-54, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court held that the right to confrontation bars the “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” See also United States v. Harper, 527 F.3d 396, 401 (5th Cir.2008); United States v. Flores, 286 Fed.Appx. 206, 214 (5th Cir.2008). There is no dispute that the playing of the video taped deposition constituted the admission of testimonial statements of a witness who did not appear at trial. At issue in this case is whether Garay-Ramirez was" }, { "docid": "11581230", "title": "", "text": "527 (7th Cir.2002) (concluding that the district court’s allowance for an expert to use the phrase “misleading and fraudulent” was not error where the expert never commented directly on the defendant’s state of mind (citing 29 Chables Alan Wright & Victor Jaimes Gold, Federal Practioe & Procedure § 6285, at 395 (1997) (“Rule 704(b) usually bars only a direct statement that defendant did or did not have the required mental state.”))). Accordingly, we hold that the district court did not abuse its discretion in admitting testimony referring to “fraudulent checks,” “fraud,” or “conspiracy.” C. Admissibility of the District Court’s Findings that Derrington Gave False Testimony Dvorin contends that the district court erred in excluding evidence and prohibiting cross-examination on the subject of the court’s tentative finding that Derring-ton had rendered false testimony regarding his plea agreement with the government during Dvorin’s first trial. At the second trial, the government filed a motion in limine seeking to preclude Dvorin’s counsel from questioning Derrington regarding whether he committed perjury during the first trial and whether the trial court made findings regarding his truthfulness during the first trial. The district court permitted Dvorin’s counsel to question Derrington about his answers to the questions that were asked of him during the first trial and whether he answered those questions truthfully, but would not allow him to question or introduce evi dence regarding the district court’s findings. Dvorin asserts that the district court’s ruling disallowing extrinsic evidence of and cross-examination regarding its findings as to Derrington’s truthfulness in -the first trial violated the Confrontation Clause of the Sixth Amendment ahd' Federal Rules of Evidence 608 and 403. “We review alleged violations of a defendant’s Sixth Amendment confrontation right de novo[,]” but “[s]uch claims ... are subject to harmless error review.” United States v. Skelton, 514 F.3d 433, 438 (5th Cir.2008) (citing United States v. Bell, 367 F.3d 452, 465 (5th Cir.2004)). Absent a constitutional violation, we review a district court’s evidentiary decisions and limitations on cross-examination for an abuse of discretion, which requires the defendant to show that the district court’s evidentiary rulings were clearly" }, { "docid": "13108820", "title": "", "text": "elements of the offense. Skelton argued that the district court should give the jury a specific instruction that the Government had to prove beyond a reasonable doubt that there was a threat to shoot Jacobs. The district court submitted the following response, “In response to Jury Note 1, you are referred back to the Court’s Instructions to the Jury.” The jury returned a verdict of guilty and Skel-ton was sentenced to 50 months imprisonment, three years of supervised release, and a $5,000 fine. He filed a timely notice of appeal. II. STANDARDS OF REVIEW We review alleged violations of a defendant’s Sixth Amendment confrontation right de novo. United States v. Bell, 367 F.3d 452, 465 (5th Cir.2004). We also review alleged violations of a defendant’s Sixth Amendment right to present a complete defense de novo. See United States v. Serrano, 406 F.3d 1208, 1214 (10th Cir.2005) (citing United States v. Solomon, 399 F.3d 1231, 1239 (10th Cir.2005)); see also United States v. Soape, 169 F.3d 257, 270 (5th Cir.1999) (“We review ... constitutional questions de novo.”). Such claims, however, are subject to harmless error review. Bell, 367 F.3d at 465; see also United States v. Jimenez, 464 F.3d 555, 558 (5th Cir.2006). If there is no constitutional violation, then we review a district court’s limitations on cross-examination for an abuse of discretion, which requires a showing that the limitations were clearly prejudicial. Jimenez, 464 F.3d at 558-59 (citing United States v. Restivo, 8 F.3d 274, 278 (5th Cir.1993)). Finally, we review the refusal to give a defense-tendered jury instruction for abuse of discretion. United States v. Correa-Ventura, 6 F.3d 1070, 1076 (5th Cir.1993). III. ANALYSIS A. Cross-Examination of Jacobs Skelton argues that the district court erred in limiting his ability to cross-examine Jacobs and otherwise present evidence regarding the allegations that Jacobs stole from Jolt and lied to the IRS. “While the scope of cross-examination is within the discretion of the trial judge, this discretionary authority to limit cross-examination comes into play only after there has been permitted as a matter of right sufficient cross-examination to satisfy the Sixth Amendment.”" } ]

[ { "docid": "16448231", "title": "", "text": "Weddell has shown that his trial counsel rendered ineffective assistance of counsel by failing to retain an expert pathologist. The starting point for this inquiry is the South Dakota Supreme Court’s factual finding that prior to trial Dr. Randall did not exclude the right side blow as a proximate cause of Caldwell’s death, such that defense counsel should have known that the State was proceeding on a multiple-blow theory as the cause of death. Dr. Randall placed more emphasis on the right side blow as a contributing factor during trial, but the South Dakota Supreme Court did not find his testimony at trial to be substantially different than his pre-trial opinions in his grand jury testimony and autopsy report. See Weddell, 604 N.W.2d at 280. Based on the South Dakota Supreme Court’s factual finding that the multiple-blow theory was apparent from Dr. Randall’s pre-trial opinions, Weddell’s trial counsel rendered ineffective assistance in failing to appreciate the possibility that the State would rely on a multiple-blow theory. Moreover, the prosecutor testified that he conveyed the multiple-blow theory to defense counsel but that they would not accept it and they believed it was a single blow that killed Caldwell. (Transcript of Honomichl habeas hearing at 160.) Failing to appreciate the possibility, if not the probability, of a multiple-blow theory placed Weddell in the position of going to trial without an expert to rebut Dr. Randall’s opinion that the right side blow contributed to Caldwell’s death. Thus, the jury could find Weddell guilty if he struck either or both of the right or left side blows to Caldwell’s head. Given at least the possibility of a multiple-blow theory, a defense expert, such as Dr. Eckert or Dr. Di Maio, was necessary to rebut the State’s argument that this was a multiple-blow case. Tappe admitted this in his deposition when he testified in the state habeas proceedings, “[Booking back, if I would have known ahead of time that [Dr. Randall] was going to contend that both blows contributed to the death, I think I would have asked for an expert on my own to" } ]

[ { "docid": "9707902", "title": "", "text": "Smith does not suggest deficiencies in the aforesaid qualifications or areas of expertise; on the face of it the state’s experts appear to have been qualified to provide the testimony they did, and the trial judge sharply rejected defense counsel’s attempt to resist the pathologist’s qualification as an expert witness, stating that “as far as I know, Dr. Galvez has been the only pathologist that has testified in this court in the three and a half years that I have been hearing cases and it’s surprising that anyone doesn’t know his qualifications.” Moreover, Smith previously contended that he was denied the opportunity to prepare by the lack of notice regarding the identity of the state’s experts, a claim deemed procedurally barred by the Mississippi Supreme Court. 434 So.2d at 218. At sentencing, the defense did not offer counter-experts, but established doubt as to the conclusiveness of the medical conclusions on cross-examination. Smith specifically alleges that his counsel was ineffective in indicting the pathologist’s conclusion that the victim was killed by manual strangulation, and refers to an expert’s affidavit offered to the district court below which concluded that the autopsy report did not definitively exclude other causes of death. Assuming defense counsel should have further impeached the manual strangulation hypothesis, it is unlikely that the error changed the result of either phase, given the relative violence of the rival explanations for the victim’s demise and the emphasis on the rape allegation in prosecution of the “especiahy heinous” aggravating circumstance. The claim that defense counsel did not “investigate the facts” is belied by numerous instances of sleuthing found in the record. Similarly, the claim that counsel failed to present a significant mitigation case is contradicted by his performance during the sentencing phase, at which he called five witnesses to testify to Smith's character and plead against imposition of the death penalty. It is not enough to allege a general failure to produce sufficient mitigation; rather, a petitioner must “specify what other mitigating evidence was available or how that evidence could have affected the jury’s decision.” Sawyer v. Butler, 848 F.2d 582, 592" }, { "docid": "12077244", "title": "", "text": "proceeding. Here the SJC noted that unlike in Hodge, where the conflict of interest caused the conflicted attorney to refuse to present important evidence on the defendant’s behalf, it could not conclude, in this case, that “trial counsel’s representation of the medical examiner prevented him from presenting important evidence on [petitioner’s] behalf....” Boateng, 781 N.E.2d at 1218. Rather, the court “disagree[d] that the circumstances [were] similar and that the evidence to which [petitioner] now points would have assisted him.” Id. The SJC reasoned that to the extent that a more aggressive cross-examination of Dr. Kessler or the rebuttal testimony of Dr. Kanfer would have “presented] an alternative ‘single blow1 theory to rebut the conclusions of the medical examiner,” such testimony would not have assisted the petitioner in defending against charges of “extreme atrocity or cruelty.” This is because, as a matter of Massachusetts law, even a single blow, especially when directed against an infant, may support a finding of extreme atrocity or cruelty. Id. (citing Commonwealth v. O’Brien, 432 Mass. 578, 736 N.E.2d 841 (2000)). Moreover, under Massachusetts law, murder may be found to have been committed “with extreme atrocity or cruelty” based on a jury’s finding of any one of the so-called Cun-neen factors: defendant’s indifference to the victim’s suffering, the degree of the victim’s suffering, the extent of the injuries, the number of blows, the manner and force with which the wounds occurred, and the disproportion between the means necessary to cause death and the force employed by the defendant. See Commonwealth v. Cunneen, 389 Mass. 216, 449 N.E.2d 658, 665 (1983). Given that the jury heard evidence that Yeb-oah-Sefah “crushed [the baby’s] skull, broke several of his ribs, and seriously damaged his lungs,” the SJC concluded that the jury had “ample evidence” from which to make such a finding. Boateng, 781 N.E.2d at 1218. Further, the SJC found that “the medical examiner’s testimony regarding the cause of death was peripheral to [petitioner’s] defense of insanity,” and in fact, based on trial counsel’s testimony at the hearing on the new trial motion, “aspects of the medical examiner’s testimony," }, { "docid": "13144248", "title": "", "text": "assertion that “it just is.” The preliminary hearing judge said he was “disappointed” in the quality of Dr. Garber’s testimony and noted that it “could not withstand the light of day beyond a reasonable doubt.” At trial in January 2001, Dr. Garber was not called to testify. Rather, the prosecution called two other pathologists to testify — Dr. Cohen, the head pathologist from the coroner’s office, and Dr. Bloor, a professor of medicine and pathology from the University of California, San Diego. The defense again called Dr. Herrmann. Dr. Garber was not called to testify nor was his autopsy report admitted into evidence. Nevertheless, over defense counsel’s repeated objections, Dr. Garber’s opinion was elicited by the prosecution during cross-examination of the defense expert, Dr. Herrmann. Dr. Herrmann was asked to explain his disagreement with Dr. Garber’s opinion that head trauma contributed to Mrs. Chromy’s death. In response, Dr. Herrmann testified that he believed Mrs. Chromy’s pre-existing medical conditions likely contributed to the cause of death, but that neither head trauma nor torso trauma contributed to her death. Earlier in the trial, the two experts called by the prosecution had not adopted Dr. Garber’s opinion. Dr. Cohen had testified that torso trauma may have contributed to the cause of death, but gave conflicting testimony as to whether head trauma may have contributed to her death or to the cause of death. Dr. Bloor testified that torso trauma contributed to the cause of death, but that head trauma did not. Therefore, Dr. Garber’s inadmissible opinion was the only expert opinion provided to the jury that head trauma definitely contributed to Mrs. Chromy’s death. All the pathologists agreed that the immediate cause of Mrs. Chromy’s death was a dissecting aortic aneurysm, also called an acute aortic dissection. But they disagreed on whether the aneurysm was caused by the trauma inflicted during the carjacking or whether it developed later, caused by other factors. The experts testified that an aneurysm can be caused by long-standing hypertension, atherosclerosis, various syndromes, and trauma. Mrs. Chromy had heart disease, hypertension and severe atherosclerosis, as well as a prior" }, { "docid": "14492396", "title": "", "text": "say a word against him, would break down and leave.” 5. The District Court’s Memorandum, Judgment, and Order The district court filed its memorandum, judgment, and order on January 21, 2004, granting petitioner’s petition for a writ of habeas corpus and ordering petitioner’s release from custody unless new state criminal proceedings against petitioner were commenced within sixty days, and staying that order pending appeal. The court found that defense counsel’s “performance was, in several respects, constitutionally deficient.” Gersten, 299 F.Supp.2d at 102. First, the court faulted defense counsel’s failure “to conduct an adequate pre-trial investigation into critical medical evidence.” For example, counsel “never obtained copies of the colposcopic slides” and “never arranged for their evaluation by an independent expert.” Id. at 103. The court found this error to be “most substantial” because it “limited [counsel’s] ability to effectively cross-examine Dr. Silecchia,” and counsel’s cross-examination in fact demonstrated that counsel possessed “little understanding of the medical fundamentals and how they might impact an expert’s evaluation of the critical question in this case.” Id. The court found that “[h]ad counsel consulted a medical expert, it is likely he would have been able to present expert testimony ... to largely rebut the conclusions of Dr. Silecchia.” Id. This would have “cast considerable doubt on Dr. Silecchia’s testimony,” and supported an inference “that no sexual abuse had occurred [and] ... that no penetrating sexual activity whatsoever had taken place.” Id. at 104. Second, the court faulted defense counsel for deciding on a theory of defense without having “conducted] an adequate investigation into alternative, complementary defenses.” Id. The court found that failing to discover and present potentially exculpatory evidence such as that now offered by Dr. Brown could not be explained by any reasonable trial strategy. This was particularly the case because the exculpatory evidence that counsel failed to discover would have been entirely consistent with his chosen defense theory that penetration, if there was any, was caused by somebody other than petitioner. Id. Moreover, a defense backed by expert medical testimony would have been “con siderably more compelling than a simple denial of sexual" }, { "docid": "13796094", "title": "", "text": "sufficient “delta” between the probative weight of SANE Burton’s testimony following defense counsel’s unassisted cross-examination and the probative weight of that testimony had defense counsel either (1) cross-examined SANE Burton with the benefit of expert assistance, or (2) countered with testimony from a defense expert. Compare Boyle v. McKune, 544 F.3d 1132, 1138-39 (10th Cir.2008) (holding that any deficiency associated with defense counsel’s “failure to interview and call to the stand any expert witnesses” was nonprejudicial where the appellant did not demonstrate “that medical experts could have reached a conclusion regarding consent contrary to the conclusions reached by the [government’s experts]” and defense counsel “elicited from the government’s expert nurse witnesses that it was possible the injuries on [the victims] could have stemmed from consensual vaginal sex, lack of lubrication, and even the re-aggravation of a previous injury”), with Caro v. Woodford, 280 F.3d 1247, 1256-58 (9th Cir.2002) (holding that trial counsel’s failure to investigate and present evidence of brain damage was prejudicial error where three separate expert witnesses testified at an evidentiary hearing that they would have concluded that petitioner suffered from brain damage). See also Amos v. Renico, 683 F.3d 720, 733 (6th Cir.2012) (concluding that “trial counsel’s failure to investigate and call expert witnesses did not work to [appellant’s] actual and substantial disadvantage” where the expert scientists who authored the “articles that [appellant] claims counsel should have discovered would not have contradicted [the government expert’s] testimony”); Villegas v. Yates, No. CV 08-02073-JFW (VBK), 2009 U.S. Dist. LEXIS 102503, at *16, *23-*25, 2009 WL 3668625, at *4-*7 (C.D.Cal. Oct. 30, 2009) (concluding that the “[petitioner has failed to demonstrate that counsel’s trial strategy was unreasonable or prejudicial” in “failing] to present an ... expert witness to counter the prosecution witness” where the expert submitted a sworn declaration that “accepts—or does not deny—that [the victim] sustained injuries and, moreover, admits that it is just as likely that such injuries were incurred during non-consensual as consensual sex”). Like SANE Burton’s testimony, SANE O’Neal’s report, taken as a whole, concludes that: (1) some amount of force is required to engage in" }, { "docid": "7017367", "title": "", "text": "that organic brain damage was present. See Thompson, 315 F.3d at 590-92 (and cases cited therein); Lorraine, 291 F.3d at 436-39 (and cases cited therein). As we stated in Lorraine, “if habeas counsel could not find evidence of organic brain damage, then trial counsel cannot be deemed ineffective” for failing to find it either. Id. at 436. Cf. Mason v. Mitchell, 320 F.3d 604, 619-27 (6th Cir.2003) (holding that the petitioner was entitled to an evidentiary hearing on the adequacy of trial counsel’s investigation and presentation of mitigation evidence; noting that readily available mitigation evidence which did not enter the record until the post-conviction stage offered an arguably reasonable probability of humanizing the petitioner before the jury such that he might not have been sentenced to death). Smith’s case is also not like a recent decision of this Court, Powell. In Powell, a panel of this Court found that the petitioner had been deprived of his right to expert psychological assistance at the sentencing phase of his trial. In reaching this conclusion, the Powell court emphasized defense counsel’s failure to make reasonable investigative efforts, Powell, 328 F.3d at 292, 2003 WL 21012621, and to research and collect necessary information in order to present effective mitigation at the penalty phase. In particular, the Powell court noted that defense counsel were ineffective because they failed to investigate the petitioner’ background, spent less than two full business days preparing for the penalty phase of the trial, and failed to interview and present numerous mitigating witnesses who were available and willing to testify on the petitioner’s behalf. Instead, trial counsel presented only one witness at mitigation, Dr. Nancy Schmidtgoessling, the same expert witness used by trial counsel in this case. Here, by contrast, trial counsel presented five witnesses at mitigation, and its principal witness, Dr. Schmidtgoessling, presented a comprehensive picture of Smith’s family, social, psychological background, based upon extensive review of “[njumerous sources of information,” which included not only psychological tests, but also interviews, hospital records, school reports, and social services records. Furthermore, in this case, Dr. Schmidt-goessling did not testify at mitigation that" }, { "docid": "14492398", "title": "", "text": "abuse,” because it would have not only rebutted the prosecution’s medical evidence but would also “have cast considerable doubt on all of the daughter’s testimony.” Id. Third, the court faulted defense counsel for failing to consult with or call a psychological expert, finding this failure to be “an independent and sufficient indication of deficiency.” Id. at 105. Again, counsel’s cross-examination of the prosecution’s psychological expert “was pallid, showing no grasp of the scientific predicates for the testimony.” Id. This lack of grasp of the science resulted in a failure to challenge significant errors in Dr. Lewittes’s opinions and thus deprived petitioner of “another critical opportunity to damage the daughter’s credibility,” and such a deficiency could not be justified by any reasonable trial strategy. Id. Finally, the court faulted counsel for relying on his “belief that the daughter ... would be unable to confront her father in open court,” finding that “[t]here was no valid basis for such a conclusion” and that this assumption on counsel’s part could not excuse his failure to prepare an adequate defense. Id. at 102. The court found that these errors of counsel prejudiced petitioner because, “[gjiven the significance of [the medical] expert testimony,” “[t]here is a reasonable probability that petitioner would not have been convicted had defense counsel conducted an adequate investigation into the medical evidence and called an expert to testify.” Id. at 104. Counsel’s failures as to the psychological expert testimony, taken “[t]ogether with the failure to consult with a medical expert,” rendered the case for ineffectiveness all the more “serious.” Id. at 105. The County Court’s “failure ... to consider the importance of this omitted expert testimony in denying petitioner’s motion to vacate the judgment of conviction” was “an unreasonable application of the Strickland standard.” Id. at 104. Respondent timely appealed. Finding the district court correct on all points, we affirm. DISCUSSION I. Standard of Review We review de novo a district court’s decision to grant a petition for a writ of habeas corpus. Jackson v. Edwards, 404 F.3d 612, 618 (2d Cir.2005). Because petitioner’s ineffectiveness claim was considered and rejected by" }, { "docid": "16189662", "title": "", "text": "[sic] three (3) to seven (7) minutes.” The affidavit said that “a blow with a fist to [Mrs. Paprocki’s] throat ... could cause her to stop breathing and culminate in death____” Dr. Spitz did not opine that the cause of death was in fact a blow to the throat; what he said, rather, was that such a blow could have been the cause of death. Dr. Petinga admitted as much during his testimony. Dr. Petinga corrected the portion of his testimony that Dr. Spitz said was clearly erroneous, as Dr. Spitz ought to have known if he had really reviewed Dr. Petin-ga’s complete trial testimony. We see no need for a hearing on the failure of the defense to call a pathologist. The effectiveness of the cross-examination in establishing the medical facts to which Dr. Spitz would have testified shows that defense counsel’s decision not to call a pathologist was well within the range of professional competence. IV The jury found beyond a reasonable doubt that Mr. Paprocki used more force than was justified and more than appeared necessary to him. By his own admission, Mr. Paprocki believed himself sufficiently strong to knock his wife unconscious with one blow. There was nothing fundamentally unfair in the trial, and there was nothing unreasonable in the jury’s conclusion that Terry Paprocki intentionally took the life of his wife without justification or excuse. The denial of the writ of habeas corpus is AFFIRMED. GEORGE CLIFTON EDWARDS, Jr., Senior Circuit Judge, dissenting. Where in our instant case the wife had a knife in her hand in the fatal altercation and the deadly blow was struck by her husband’s fist, I believe omission of the paragraph of the Michigan Standard Criminal Jury Instruction (CJI) 7:9:06 entitled “Burden of Proof — Self Defense,” which reads as follows: The defendant is not required to prove that he acted in self-defense. The prosecution has the burden of proof of guilt beyond a reasonable doubt, and this includes the responsibility of proving that the defendant was not acting in self-defense. requires remand for new trial." }, { "docid": "22283982", "title": "", "text": "of the facts,” we must deny relief. See 28 U.S.C. § 2254(d). 2. Doctor’s testimony Mr. Cannon claims that his trial counsel was ineffective for failure to raise several objections to testimony by Dr. Hemphill, who examined the victim’s body. He contends that Dr. Hemphill (1) offered objectionable testimony on the element of intent by declaring that the cause of death was “homicide”; (2) improperly testified that certain wounds on the victim were “defense wounds”; (3) improperly testified that a necklace found at the scene could have caused some of the victim’s injuries; (4) lacked sufficient knowledge to testify; and (5) should have been cross-examined regarding the time of death. Mr. Cannon also contends that counsel was ineffective for failing to object to the prosecution’s mischaracterization of Dr. Hemphill’s testimony during closing argument. a. “Homicide” testimony Mr. Cannon complains that Dr. Hemphill was permitted to testify that the cause of the victim’s death was homicide. The following exchange occurred during direct examination of Dr. Hemphill: Q: And based on viewing what you viewed, did you formulate an opinion as to the manner of death? A: Yes. Q: And in your expert opinion, what was the manner of death? A: Homicide. Tr. at 881. On cross-examination the defense attorney followed up on this line of questioning: Q: Dr. Hemphill, you, uh, said that you have, formulated the opinion that this was a homicide, right? A: Yes. Q: Would you please define for me what you mean when you' say homicide? A: Yes. Part of the Medical Examiner’s responsibility in investigating a case is to give an opinion as to the appropriate manner into which the death should be classified. Our report is incomplete without it. It’s only an opinion. It’s not a ruling. Nobody has to do anything based on it, but homicide, the way we use it, means that the death, in our opinion, the death was caused by the action of another person and that action was intended to cause harm and that’s all it means. Id. at 884-85 (emphasis added). On re-direct examination, the prosecutor asked, “And is" }, { "docid": "23128339", "title": "", "text": "Demarest’s new expert testimony from Dr. Kennedy resembles the new expert testimony offered by the petitioner in the Fifth Circuit’s decision in Dispensa, 826 F.2d at 379-80. As in that case, the new evidence offered by Mr. Demarest through Dr. Kennedy and Mr. Foreman transformed his claim from one involving only general allegations of failing to investigate and cross-examine and only a minimal showing of prejudice into one involving a concrete reference to a qualified expert who could have been produced at trial to rebut the scientific basis of the state’s case. We therefore conclude that Mr. De-marest’s allegations regarding his trial counsel’s failure to challenge the state’s blood-spatter evidence were not fairly presented to the state courts. c. Medical and Psychiatric Evidence We reach the same conclusion as to the medical and psychiatric evidence that Mr. Demarest produced at the federal evidentia-ry hearing to demonstrate how his mental state during the period shortly after Mr. Hyams’s murder could have been explained to the jury. At the federal hearing, Mr. Demarest presented three witnesses on this subject who did not testify in the state court proceedings: (1) Dr. Kathy Vedeal, a toxicologist, who testified about the effects of medication taken by Mr. Demarest after the murder and stated that the medication could have blurred his thinking; (2) Dr. William Rehg, a psychiatrist, who testified about Mr. Demarest’s mental state when Mr. Demarest was questioned by law enforcement officers and explained that Mr. Demarest’s highly emotional state could have been caused by feelings of shock and grief over the death of a friend; and (3) Lee Foreman, Mr. Demar-est’s legal expert, who testified that Mr. De-marest’s trial counsel should have introduced medical and psychological evidence such as that given by Drs. Vedeal and Rehg to explain why Mr. Demarest had difficultly giving consistent and coherent answers when he was interrogated. According to Mr. Foreman, a competent defense attorney could have used this evidence to rebut the prosecution’s contention that Mr. Demarest’s confused answers and emotional reactions reflected consciousness of guilt and to establish that Mr. Demarest had acted as would someone" }, { "docid": "8289174", "title": "", "text": "death was direct trauma to the brainstem. On cross-examination, she agreed with defense counsel that retinal hemorrhaging (absent in Etzel’s case) is present in 75 to 80 percent of SBS cases. The third prosecution expert, Dr. David Chadwick, is board certified in pediatrics and the author of articles on childhood death by abusive trauma. He testified that Et- zel’s injuries were consistent with SBS and that old trauma could not have been the cause of the child’s death. The defense called two experts to dispute these conclusions. The first, pathologist Dr. Richard Siegler, testified that Etzel died from brain trauma, but that it was not the result of SBS, given the lack of retinal hemorrhaging. He admitted on cross-examination, however, that an absence of retinal hemorrhaging does not exclude a finding of SBS. He also acknowledged that he did not believe the cause of Etzel’s death was SIDS. According to Dr. Siegler, Etzel died from old trauma, an opinion he reached on the basis of studying photographs of the neuropathological examination. The other defense expert, pediatric neurologist Dr. William Goldie, testified that Etzel’s death was due to SIDS. He noted that Etzel was born with jaundice, a heart murmur, and low birth weight — making him more susceptible to SIDS. Dr. Goldie testified that pathologists had not been able to determine the cause of Etzel’s death and that the bleeding could be attributed to the resuscitation efforts. The jury found Smith guilty. Concluding that the jury “carefully weighed” the “tremendous amount of evidence” supporting the verdict, Tr. 1649, the trial judge denied Smith’s motion for a new trial and sentenced her to an indeterminate term of 15 years to life in prison. On direct review, Smith contended that the evidence was not sufficient to establish that Etzel died from SBS. After thoroughly reviewing the competing medical testimony, the California Court of Appeal rejected this claim, concluding: “The expert opinion evidence we have summarized was conflicting. It was for the jury to resolve the conflicts. The credited evidence was substantial and sufficient to support the jury’s conclusion that Etzel died from" }, { "docid": "14722348", "title": "", "text": "In order to prevail on this theory, the State had to prove that Ainsworth’s restraint of Huynh was the proximate cause of her death, i.e., had she been released, medical personnel could have saved Huynh’s life. Ainsworth contends that if defense counsel had investigated and presented the available medical evidence, the jury would have heard evidence that the gunshot wound in the pelvis could have been fatal, even though presumably not intended to be; therefore, any conduct barring access to medical care could not be a proximate cause of death and could not be the basis for a finding of premeditated murder. We apply a two-prong test to determine whether trial counsel provided ineffective assistance. First, we examine the question of whether trial counsel’s performance “fell below an objective standard of reasonableness ... under prevailing professional norms.” Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984). Second, we must determine whether there was resultant prejudice, i.e., whether “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068. Our review is highly deferential; we will not second-guess defense counsel’s decisions, but must indulge a strong presumption that his conduct 'fell within the wide range of professionally competent assistance. Id. at 689-90, 104 S.Ct. at 2065-66. The State argues that the district court erred by finding that Brian Christiansen, as defense counsel, failed to interview Dr. Joseph H. Masters, the pathologist who performed the autopsy and testified at trial on behalf of the State, and that this omission constituted a deficient performance. Christiansen stated at his deposition that he recalled speaking with Dr. Masters at least once before trial. However, Christian-sen could not recall where or when this conversation took place, nor could he- remember what was discussed. Dr. Masters had no recollection of any such conversation, and Christiansen’s own files contained no notes of or references to any meeting with Dr. Masters. While Christiansen testified that some of his files from the Ainsworth trial had been lost in" }, { "docid": "22283981", "title": "", "text": "version of what had occurred.” Tr. 765. Mr. Cannon now argues that his trial attorney was ineffective for not objecting to the question on the ground that it called for improper opinion testimony. We reject this claim because we are bound by the OCCA’s determination on the merits that any error in admitting Fultz’s opinion was harmless. In resolving Mr. Cannon’s direct appeal, the OCCA wrote: Even if we construed Fultz’ statement as an improper opinion telling the jury what to find, defense counsel attacked Fultz on cross-examination because he could not produce any evidence of who started the fight, who had the knife first or any statements of the victim to disprove [Mr. Cannon’s] self defense claim. Defense counsel’s attempts to expose the basis of Fultz’ conclusion on cross-examination cured any error which could have resulted.” Cannon, 961 P.2d at 846. Because the OCCA neither adjudicated the claim in a manner that was “contrary to, or ... an unreasonable application of, clearly established Federal law” nor made its decision “based on an unreasonable determination of the facts,” we must deny relief. See 28 U.S.C. § 2254(d). 2. Doctor’s testimony Mr. Cannon claims that his trial counsel was ineffective for failure to raise several objections to testimony by Dr. Hemphill, who examined the victim’s body. He contends that Dr. Hemphill (1) offered objectionable testimony on the element of intent by declaring that the cause of death was “homicide”; (2) improperly testified that certain wounds on the victim were “defense wounds”; (3) improperly testified that a necklace found at the scene could have caused some of the victim’s injuries; (4) lacked sufficient knowledge to testify; and (5) should have been cross-examined regarding the time of death. Mr. Cannon also contends that counsel was ineffective for failing to object to the prosecution’s mischaracterization of Dr. Hemphill’s testimony during closing argument. a. “Homicide” testimony Mr. Cannon complains that Dr. Hemphill was permitted to testify that the cause of the victim’s death was homicide. The following exchange occurred during direct examination of Dr. Hemphill: Q: And based on viewing what you viewed, did you" }, { "docid": "8289173", "title": "", "text": "in death but little direct damage to the brain. The second is that the shaking itself is sufficiently severe that the brain directly tears in vital areas, causing death with very little bleeding. Dr. Carpenter testified that Etzel’s injuries were consistent with the latter pathology. He also explained that the injuries could not be attributed to either a fall from the sofa or the administration of cardiopulmonary resuscitation. Nor, according to Dr. Carpenter, was it possible that Etzel perished from SIDS, given the signs of internal trauma. Dr. Carpenter did testify, however, that while SBS victims often suffer retinal hemorrhaging, Etzel’s autopsy revealed no such injury. The prosecution’s second expert, Dr. Stephanie Erlich, was the associate deputy medical examiner who actually performed Etzel’s autopsy. She is board certified in anatomic pathology and neuropathology. She corroborated Dr. Carpenter’s testimony about the autopsy findings, and added that a followup neuropathologieal examination of Etzel’s brain confirmed the existence of recent hemorrhaging. Noting only a minimal amount of new blood in Etzel’s brain, she testified that the cause of death was direct trauma to the brainstem. On cross-examination, she agreed with defense counsel that retinal hemorrhaging (absent in Etzel’s case) is present in 75 to 80 percent of SBS cases. The third prosecution expert, Dr. David Chadwick, is board certified in pediatrics and the author of articles on childhood death by abusive trauma. He testified that Et- zel’s injuries were consistent with SBS and that old trauma could not have been the cause of the child’s death. The defense called two experts to dispute these conclusions. The first, pathologist Dr. Richard Siegler, testified that Etzel died from brain trauma, but that it was not the result of SBS, given the lack of retinal hemorrhaging. He admitted on cross-examination, however, that an absence of retinal hemorrhaging does not exclude a finding of SBS. He also acknowledged that he did not believe the cause of Etzel’s death was SIDS. According to Dr. Siegler, Etzel died from old trauma, an opinion he reached on the basis of studying photographs of the neuropathological examination. The other defense expert," }, { "docid": "23029574", "title": "", "text": "(“Decisions whether to engage in cross-examination, and if so to what extent and in what manner, are similarly strategic in nature.”). Eze’s counsel conducted a cross examination of Dr. Lazoritz that elicited several important points helpful to the defendant, including that other trauma could have caused the girls’ condition, that Chendo’s 1988 findings resembled those from 1991, and that Dr. Lazoritz had been informed that there was an allegation of sexual abuse prior to conducting his examination. Eze next argues that his counsel failed to enlighten the jury about the extent to which the medical community had called into question the method used by Dr. La-zoritz to conclude that sexual abuse occurred. In particular, Eze notes that his counsel failed to bring out that medical child sex abuse experts were questioning the significance of enlarged hymenal openings. Closely related to this objection is Eze’s claim that his counsel should have called a medical expert to rebut Dr. Lazo-ritz’s methodology and conclusions. We are especially concerned, in light of our holding in Lindstadt, with defense counsel’s failure to impeach the underlying medical grounds on which Dr. Lazoritz based his conclusion that the girls had been abused. The defendant in Lindstadt was convicted of sexually abusing his young daughter based on the testimony of his daughter, his estranged wife, and two (one medical and one psychological) expert witnesses. 239 F.3d at 193. The medical expert offered testimony that carried probative strength comparable to that of Dr. Lazoritz’s testimony. The expert in Lind-stadt testified to his findings from a physical examination of the alleged victim; these findings were the only physical evidence the prosecution introduced. Id. at 201. The expert stated that his findings were indicative of sexual abuse, a conclusion he based on studies that were never introduced into evidence. Id. at 201-02. Because the defendant’s counsel did not even request copies of these studies, he was unable to cross-examine the medical expert effectively on them. Id. Nor was there evidence that the defense contacted an expert of its own “either to testify or (at least) to educate counsel on the vagaries" }, { "docid": "14492397", "title": "", "text": "that “[h]ad counsel consulted a medical expert, it is likely he would have been able to present expert testimony ... to largely rebut the conclusions of Dr. Silecchia.” Id. This would have “cast considerable doubt on Dr. Silecchia’s testimony,” and supported an inference “that no sexual abuse had occurred [and] ... that no penetrating sexual activity whatsoever had taken place.” Id. at 104. Second, the court faulted defense counsel for deciding on a theory of defense without having “conducted] an adequate investigation into alternative, complementary defenses.” Id. The court found that failing to discover and present potentially exculpatory evidence such as that now offered by Dr. Brown could not be explained by any reasonable trial strategy. This was particularly the case because the exculpatory evidence that counsel failed to discover would have been entirely consistent with his chosen defense theory that penetration, if there was any, was caused by somebody other than petitioner. Id. Moreover, a defense backed by expert medical testimony would have been “con siderably more compelling than a simple denial of sexual abuse,” because it would have not only rebutted the prosecution’s medical evidence but would also “have cast considerable doubt on all of the daughter’s testimony.” Id. Third, the court faulted defense counsel for failing to consult with or call a psychological expert, finding this failure to be “an independent and sufficient indication of deficiency.” Id. at 105. Again, counsel’s cross-examination of the prosecution’s psychological expert “was pallid, showing no grasp of the scientific predicates for the testimony.” Id. This lack of grasp of the science resulted in a failure to challenge significant errors in Dr. Lewittes’s opinions and thus deprived petitioner of “another critical opportunity to damage the daughter’s credibility,” and such a deficiency could not be justified by any reasonable trial strategy. Id. Finally, the court faulted counsel for relying on his “belief that the daughter ... would be unable to confront her father in open court,” finding that “[t]here was no valid basis for such a conclusion” and that this assumption on counsel’s part could not excuse his failure to prepare an adequate" }, { "docid": "16448234", "title": "", "text": "the fight. Presumably if Dr. Randall was able to make this conclusion from examining photographs, another pathologist retained by the defense could have reached the same conclusion and informed Weddell’s trial counsel of this conclusion prior to trial, which would have made it even more important for Weddell to establish that the left side blow was the sole cause of death. While Weddell “lucked out” that the State’s pathologist essentially excluded his weapon as the one that inflicted the left side blow, trial counsel did not have that information prior to trial and it does not excuse counsel from failing to seek an expert to identify the instruments inflicting the blows. Moreover, after the development at trial that a weapon such as a car jack, rather than a wooden club, inflicted the left side blow, it became crucial to Weddell’s defense to have an expert to testify the left side blow was the sole cause of death. For all of the above reasons, the Court concludes that Tappe’s representation of Weddell was deficient for failing to retain an expert to testify regarding the cause of Caldwell’s death. The prejudice prong of the ineffective assistance of counsel claim was addressed above in connection with Weddell’s claim that Tappe should have sought a continuance. During the state habeas proceed ings, Weddell presented the testimony of two forensic pathologists that conclusively testified that the right side blow did not contribute in any way to Caldwell’s death. Although having an expert to rebut the state’s expert may not. always result in the defendant prevailing at trial, this case is exceptional because Dr. Randall’s opinion that the right side injury contributed to Caldwell’s death was weak at best. When asked directly about the contributory effect of the right side blow, Dr. Randall stated that the right side blow “may well have contributed to some degree to the ultimate death of the decedent.” (Trial Transcript at 498.) Dr. Randall further stated “[m]y testimony though is that I cannot determine what contributory effect the blow to the right side of the head may have had.” (Id. at" }, { "docid": "412494", "title": "", "text": "been (or would be) incurred, and that the circumstances of his case brought it within the terms of the statute. If co-counsel, who was responsible for expert testimony, had been diligent, he would have presented his case to the court in a proper manner. It is no excuse that he was engaged in another case, during the three days between arraignment and trial. It is difficult to see how he could have been adequately prepared on any phase of the case under such circumstances. Yet the record fails to show a motion for continuance. I would reverse for ineffective assistance of counsel. That is where the true fault lies. The majority opinion more grievously errs in the relief portion of the opinion. I would reverse and remand for a new trial. Counsel should have the opportunity to make and argue a motion for allowance of expenses for the employment of an independent forensic pathologist to evaluate the medical and scientific causes of the victim’s death and to advise counsel during trial. The trial judge would then have an opportunity to make a determination as to whether such relief should be granted. There is more involved in the proper defense of a case than its mere presentation at the trial itself. More often than not the preparation for trial is of greater importance. How is counsel to prepare a defense unless he can secure information upon which to base it? Here he needed to consult an expert to determine whether the state’s pathologist was correct in his opinion as to the cause of death. The expert would undoubtedly have been helpful to counsel in understanding the medical testimony, in cross examining the state’s expert and in presenting his argument to the court and jury. The majority proposes to let this conviction stand unless “. . . the testimony of the pathologist would have been relevant to [the] defense.” As I interpret this phrase, it makes the pathologist’s testimony conclusive on the constitutional issue. This is inconsistent with the majority’s position that the assistance of an expert was necessary for an adequate" }, { "docid": "16189661", "title": "", "text": "manner that “deserves ... condemnation,” but still is not egregious enough to deprive the defendant of a fair trial. Darden v. Wainwright, 477 U.S. 168, 179, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986). Here the alleged misconduct did not come close to rendering the trial fundamentally unfair. The challenged acts were isolated, not pervasive, and there seems to have been no deliberate flouting of the rules. The trial as a whole was quite unexceptionable, as we read the record. C Mr. Paprocki gave the district court an affidavit signed by Werner Spitz, M.D., the Chief Medical Examiner for Wayne County, Michigan, in which Dr. Spitz said that he had reviewed “the available medical records, autopsy report, photographs of the deceased, and complete trial testimony of Dr. Thomas Petinga,” the medical examiner who testified for the prosecution. The affidavit said that Dr. Petinga was “materially incorrect regarding the process of death by asphyxiation,” and “was clearly erroneous when he testified that for death to occur, the deceased had to have been strangled manually from for [sic] three (3) to seven (7) minutes.” The affidavit said that “a blow with a fist to [Mrs. Paprocki’s] throat ... could cause her to stop breathing and culminate in death____” Dr. Spitz did not opine that the cause of death was in fact a blow to the throat; what he said, rather, was that such a blow could have been the cause of death. Dr. Petinga admitted as much during his testimony. Dr. Petinga corrected the portion of his testimony that Dr. Spitz said was clearly erroneous, as Dr. Spitz ought to have known if he had really reviewed Dr. Petin-ga’s complete trial testimony. We see no need for a hearing on the failure of the defense to call a pathologist. The effectiveness of the cross-examination in establishing the medical facts to which Dr. Spitz would have testified shows that defense counsel’s decision not to call a pathologist was well within the range of professional competence. IV The jury found beyond a reasonable doubt that Mr. Paprocki used more force than was justified and" }, { "docid": "5480632", "title": "", "text": "current counsel makes quite clear that had he been trial counsel, the case would have been tried much differently, this is not the test for ineffective assistance. See Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. In sum, we find that this case bears little resemblance to those in which this court has found that counsel’s failure to investigate deprived the defendant of his sixth amendment right to counsel. Card’s allegations of attorney neglect are contradicted by the record. His counsel actually performed much of the investigation with which Card fails to credit him, and as to those areas where counsel did not investigate, we find that this was not deficient performance. Because we find that coun sel’s performance was not deficient, we do not reach the question of whether Card has demonstrated prejudice. II. Ineffective Assistance of Counsel at the Penalty Phase of Trial Card argues that trial counsel failed to conduct an adequate investigation into his background and history, resulting in the deprivation of powerful evidence in mitigation which could have been used at the penalty phase of trial. He claims that as a result he was denied his sixth amendment right to effective assistance of counsel. Strickland, 466 U.S. 668, 104 S.Ct. 2052. Card argues that counsel was ineffective in two ways: First, counsel failed to call family members to testify as to Card’s background. Second, counsel and the mental health experts on whom counsel relied failed to perform an adequate investigation of Card’s background, including his medical problems. As a result, despite the testimony of Dr. Hord, the jury was unaware of that background when it made its sentencing recommendation. Card further asserts that counsel’s errors were prejudicial because the evidence was clearly mitigating and, had it been presented to the jury that recommended death by a 7 to 5 vote, there is a high probability that the outcome would have been different. A. Testimony at the Sentencing Hearing The only witness to testify during the penalty phase was Dr. James Hord, a clinical psychologist called by defense attorney Ingles, who represented Card during the" } ]

[ { "docid": "20980670", "title": "", "text": "me and the record before the Referee, and the Bankruptcy law, that the Referee was in error in disapproving the unanimous election of R. Emmett Kerr as trustee. The pertinent portion of the statute involved in this controversy is as follows: “Receivers and trustees shall be (1) individuals who are competent to perform their duties and who reside or have an office in the judicial district within which they are appointed; * * 11 U.S. C.A. § 73. In statutory construction, it is settled that “reside” is an elastic term to be interpreted in the light of the purpose of the statute in which such term is used; “reside” is a term whose statutory meaning depends upon the context and purpose of the statute in which it occurs. In re Jones, 341 Pa. 329, 19 A.2d 280, at page 282; McGrath v. Stevenson, 194 Wash. 160, 77 P.2d 608, 609. It is not synonymous with “citizenship” (Robertson v. Cease, 97 U.S. 646, 24 L.Ed. 1057); while a person may be said to have but one domicile, he may have several residences. Zambrino v. Galveston, H. & S. A. Ry. Co., C.C., 38 F. 449, 453. The terms “reside” or “have an office in” have reference to the actual presence of the trustee within the judicial district, rather than a legal or a voting residence; if a person resides in Charlotte, North Carolina, and has an office in this district at the time of his appointment, he is qualified; or if he has an office in Charlotte, North Carolina, and resides in this district at the time of his appointment, he is qualified. The requirement of the bankruptcy statute “reside in” or “have an office in” was intended to serve the same purpose, that is, that the person qualifying would be sufficiently present in the judicial district to be subject to judicial process within the district and to be available for consultation conveniently therein. As the court said In re Seider, D.C., 163 F. 138, “the entire scheme of the bankruptcy law is aimed at the convenience of the parties”. In" } ]

[ { "docid": "23544507", "title": "", "text": "an office” should be read broadly, but chose not to do so. The Appellants have cited several district court decisions from other circuits which they claim give a more expansive definition of the term “office” under Section 45 of the Bankruptcy Act. See In re Construction Supply Corporation, 221 F.Supp. 124, 126 (E.D.Va.1963); In re Flexible Conveyor Co., 156 F.Supp. 164, 168 (N.D.Ohio 1957); In re Seider, 163 F. 138, 139 (E.D.N.Y.1908). As these cases were decided prior to Drummond and are not binding, their relevance to this case is negligible. Moreover, other decisions support the narrow reading of the term “office” given in the Drummond case. See In re 4847 Merrick Road, Inc., 250 F.Supp. 929, 930 (E.D.N.Y.1966); In re Pick Barth Holding Corporation, 4 F.Supp. 228, 229 (D.Del.1933). The Appellants contend that Drummond should not be followed. But it is not the Panel’s place to reject a decision of the Ninth Circuit Court of Appeals. Although Drummond was decided under the former Bankruptcy Act, it is quite relevant since “Section 321 is adapted from current Bankruptcy Act § 45 and Bankruptcy Rule 209.” H.R.Rep. No. 595, 95th Cong., 1st Sess. 326 (1977); S.Rep. No. 989, 95th Cong., 2d Sess. 36 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5822, 6282. Unless the intent to change a law or policy is clearly expressed, we may not interpret such change from modification of language in the revision of a statute. In re Ehring, 91 B.R. 897, 900 (9th Cir. BAP 1988), aff’d, 900 F.2d 184 (9th Cir.1990). There is no indication that in enacting Code Section 321, Congress meant to diverge from the Act’s requirement that trustees have an office in or near the judicial district in which the case was pending. Therefore we should interpret the term “office” in a manner consistent with precedent established under the Bankruptcy Act and defer to the law established in Drummond. The Drummond case was decided before the advent of facsimile machines, jet airplanes and other modern devices. Given that the Drummond court emphasized a trustee’s physical availability in the judicial district, the fact that" }, { "docid": "7629403", "title": "", "text": "reasonable reliance by Giannone on the false representation, and resultant damage. Parker Precision Products Co. v. Metropolitan Life Insurance Co., 407 F.2d 1070, 1076 (3d Cir. 1969); Van Houten Service, Inc. v. Shell Oil Co., 417 F.Supp. 523, 527 (D.N.J. 1975), aff’d, 546 F.2d 421 (3d Cir. 1976); Bilotti v. Accurate Forming Corp., 39 N.J. 184, 206, 188 A.2d 24, 36 (1963); Louis Schlesinger Co. v. Wilson, 22 N.J. 576, 585— 86,127 A.2d 13,18 (1956). The burden is on Giannone to establish these necessary elements of an action for fraud. Pappas v. Moss, 257 F.Supp. 345, 361 (D.N.J.1966), rev’d on other grounds, 393 F.2d 865 (3d Cir. 1968), on remand, 303 F.Supp. 1257 (D.N.J.1969). Giannone, at the outset, is faced with a formidable task. Bankruptcy Rule 810 dictates that the district court review findings of fact by the bankruptcy judge by the clearly erroneous standard; this court on appeal is similarly limited by Rule 52(a) of the Federal Rules of Civil Procedure. Giannone challenges the application of the clearly erroneous standard and urges that we exercise independent review. He contends that the issue of fraud is a conclusion of law, not a finding of fact. Of course, when a case raises purely legal issues, the clearly erroneous standard does not apply. In re Meade Land and Development Co., 527 F.2d 280, 282-83 (3d Cir. 1975). The crucial issue in this reclamation suit is the intent of the party alleged to have committed the fraud. The court in Tepper v. Chichester, 285 F.2d 309, 312 (9th Cir. 1960), addressed the appropriate standard of review: In reclamation proceedings, the findings of the referee on questions of intent, purpose, possession and the nature of the dealings between the parties are questions of fact, or in some instances, mixed questions of law and of fact, and the findings of the referee as approved and confirmed by the District Judge will not be set aside on anything less than a demonstration of clear mistake in applying the law. In In re Butler, 425 F.2d 47 (3d Cir. 1970), this court was confronted with allegations of" }, { "docid": "7096496", "title": "", "text": "court” imposed contempt sanctions show that the power was actually exercised by a judge of a United States District Court. See, e.g., Morehouse v. Giant Powder Co., 206 F. 24 (9th Cir.1913) (fine for disposing of bankrupt’s property upheld); In re Fortunaxo, 128 F. 622 (S.D.N.Y.1908). The Boyd case and decisions subsequent to it are also clear in holding that the referee, at least prior to the adoption of the 1973 Rules, had no power to punish for contempt. Only the district court judge, acting in his capacity of judge of the bankruptcy court had that power. In re Rubin, 378 F.2d 104 (3d Cir.1967); O’Hagan v. Blythe, 354 F.2d 83 (2d Cir.1965); In re Haring, 193 F. 168, 170-73 (W.D.Mich.1912), aff’d, 203 F. 229 (6th Cir.), cert. denied, 229 U.S. 621, 33 S.Ct. 1049, 57 L.Ed. 1355 (1913). The applicable statute required the referee to certify to the district judge the facts giving rise to the alleged contempt. 11 U.S.C. § 69(b). In sum, it is conclusive that until the adoption of the 1973 Rules, the power of contempt in bankruptcy proceedings was vested exclusively in the district court judge acting in his capacity as judge of “the bankruptcy court,” which court was in fact the United States District Court. In 1973, the United States Supreme Court adopted the Rules of Bankruptcy Procedure. 411 U.S. 989, 93 S.Ct. 3081, 37 L.Ed.2d xxxi (1973). For the first time the bankruptcy referees (called “bankruptcy judges” thereunder) were granted a limited power of contempt pursuant to Rule 920. The essence of that rule is that a referee could punish both civil and criminal contemptuous behavior prohibited by 11 U.S.C. § 69(a)(2) by imposing a fine of not more than $250. If the referee believed the contemptuous behavior warranted imprisonment or a fine greater than $250, he was required to certify the facts to the district judge for disposition. The rationale for this limited power of contempt was expressed in the Advisory Committee’s Note accompanying Rule 920. Paragraph (4) of subdivision (a) of this rule retains for all but minor contempts the certification" }, { "docid": "7134573", "title": "", "text": "J., dissenting). The referee, who is required by § 35(4) of the Act to reside and have his office in the district for which he is appointed, and the district judge, both directly engaged in supervising the administration of bankrupt estates, are in a better position than circuit judges, often in a distant city, to assess the supply curve of competent attorneys and strike the proper balance. See In re Paramount Merrick, Inc., 252 F.2d 482, 485 (2 Cir. 1958); General Order 47. Moreover, an attorney’s compensation is a function not only of time spent but of other factors as well. We have often indicated our adherence to the generally accepted formula that the “principal factors which enter into a determination of what is reasonable are,” in addition to “the time spent, the intricacy of the questions involved, the size of the estate, the opposition encountered, the results obtained and the ‘economic spirit’ of the Bankruptcy Act to curtail unnecessary expenses.” In re Paramount Merrick, Inc., supra, 252 F.2d at 485. We have no reason to doubt that the referee took these factors into account in determining the allowance for the services that were properly compensable. Although a somewhat higher allowance might have been warranted, courts of appeals are properly “reluctant,” as we stated in In re Paramount Merrick, Inc., supra, “to overturn the determination” of the referee and the district judge “unless it can be shown that the allowance was arbitrary and unreasonable.” The allowance amounts to 6.5% of the estate, only .6% less than the 1966 national average, see Administrative Office of the United States Courts, Division of Bankruptcy Administration, Tabulation of Costs of Administration 1966. While this would not be determinative if unusual services were involved, see Jacobowitz v. Double Seven Corp., 378 F.2d 405, 407 (9 Cir. 1967) (majority opinion), it provides some assurance that there was no unfairness in a case like this where the services required, while not insubstantial, were in no way extraordinary. Judgment affirmed. . The accounts he collected without litigation yielded about $500; those whose collection required litigation apparently yielded even" }, { "docid": "23544506", "title": "", "text": "requirement should not be countenanced, as mere payment of rent for property in Alaska does not assure Pardo’s presence and availability in Alaska. Congress’s directive concerning the location of a trustee’s office must be complied with not just technically, but so as to serve the spirit of the rule; the rule is not to be probed for loopholes. A site which an individual rents for the sole purpose of allowing him an active role in one specific bankruptcy case is not to be considered that person’s “office” under Code Section 321(a)(1). The Appellants maintain that Congress knew how to limit the requirement of having an office, but chose not to do so. In 28 U.S.C. § 1408(1), venue of bankruptcy cases is limited to, inter alia, districts in which the debtor’s principal place of business has been located for 180 days before the petition was filed. Venue is a completely different issue than qualification of a trustee. Moreover, using the Appellants’ analysis, one also could argue that Congress could have specified that the term “has an office” should be read broadly, but chose not to do so. The Appellants have cited several district court decisions from other circuits which they claim give a more expansive definition of the term “office” under Section 45 of the Bankruptcy Act. See In re Construction Supply Corporation, 221 F.Supp. 124, 126 (E.D.Va.1963); In re Flexible Conveyor Co., 156 F.Supp. 164, 168 (N.D.Ohio 1957); In re Seider, 163 F. 138, 139 (E.D.N.Y.1908). As these cases were decided prior to Drummond and are not binding, their relevance to this case is negligible. Moreover, other decisions support the narrow reading of the term “office” given in the Drummond case. See In re 4847 Merrick Road, Inc., 250 F.Supp. 929, 930 (E.D.N.Y.1966); In re Pick Barth Holding Corporation, 4 F.Supp. 228, 229 (D.Del.1933). The Appellants contend that Drummond should not be followed. But it is not the Panel’s place to reject a decision of the Ninth Circuit Court of Appeals. Although Drummond was decided under the former Bankruptcy Act, it is quite relevant since “Section 321 is adapted" }, { "docid": "7629404", "title": "", "text": "exercise independent review. He contends that the issue of fraud is a conclusion of law, not a finding of fact. Of course, when a case raises purely legal issues, the clearly erroneous standard does not apply. In re Meade Land and Development Co., 527 F.2d 280, 282-83 (3d Cir. 1975). The crucial issue in this reclamation suit is the intent of the party alleged to have committed the fraud. The court in Tepper v. Chichester, 285 F.2d 309, 312 (9th Cir. 1960), addressed the appropriate standard of review: In reclamation proceedings, the findings of the referee on questions of intent, purpose, possession and the nature of the dealings between the parties are questions of fact, or in some instances, mixed questions of law and of fact, and the findings of the referee as approved and confirmed by the District Judge will not be set aside on anything less than a demonstration of clear mistake in applying the law. In In re Butler, 425 F.2d 47 (3d Cir. 1970), this court was confronted with allegations of fraud in the bankruptcy context. We applied the clearly erroneous standard to a determination by the referee that the bankrupt had acted with “reckless indifference in effectuating the transaction in total ignorance of the true facts.” Id. at 50. The second obstacle which Giannone must overcome is that he must show fraud by clear and convincing evidence. First, when seeking rescission of a contract in equity for fraud, New Jersey law requires proof by that standard. Williams v. Witt, 98 N.J.Super. 1, 4, 235 A.2d 902, 903 (1967); Connelly v. Weisfeld, 142 N.J.Eq. 406, 59 A.2d 869 (1948). Moreover, in order to fulfill the Bankruptcy Act’s goals of avoiding the “danger of improper preferences being obtained under the guise of thus rescinding contracts of sale and reclaiming goods sold on the ground of fraud, . the fraud must be established to the satisfaction of the court by evidence clear, unequivocal, and convincing.” In re Stridacchio, 107 F.Supp. 486, 488 (D.N.J. 1952). We wish to emphasize that the bankruptcy judge found “not one scintilla of evidence" }, { "docid": "8962097", "title": "", "text": "There are some cases that at first glance might appear to hold that the district court could not review the referee’s factual findings. See, e.g., In re Frankel, 184 F. 539 (S.D.N.Y.1911); In re Marks, 176 F. 1018 (E.D.Pa.1910). These cases all involve turnover proceedings, in which the referee finds that the debtor has hidden assets and accordingly orders the debtor to turn such assets over to the trustee. When the debtor fails to comply with the turnover order, he is brought before the district judge on contempt charges. The courts in cases such as Frankel and Marks ruled that the initial turnover order was not reviewable by the district judge during the contempt proceeding. These cases are distinguishable from the instant case, however, in that the bankrupt had the right to appeal the referee’s turnover order proceeding. The turnover proceedings were therefore separate from the contempt proceedings. In the instant case, however, there was no opportunity, apart from the contempt proceedings, to have the district court review the magistrate’s determination that the consent order had been violated. . It might be argued that the more recent view was that the district court should receive evidence in all circumstances, for several later sources have flatly stated that the referee’s certificate was merely the means whereby the judge is informed of the alleged contempt. See, e.g., O’Hagan v. Blythe, 354 F.2d 83, 84-85 (2d Cir.1965); 2 Collier, Bankruptcy, ¶ 41.09, at 1599 (14th Ed.1978). These sources do not appear to distinguish between those cases involving incarceration and those cases not involving incarceration. Whether it was ever understood that the district court should receive evidence in proceedings under § 69 not involving incarceration is open to doubt, however. To begin with, O'Hagan was a criminal contempt case. Moreover, Collier’s treatise does not cite any cases in support of its general statement that the referee’s certificate was nothing more than the means by which the judge was informed of the contempt." }, { "docid": "14639488", "title": "", "text": "KILKENNY, District Judge: This is an appeal from a District Court order affirming the judgment of a Referee in Bankruptcy refusing to grant appellant a discharge, on the ground that he had deliberately failed to keep, preserve, or produce books of account or records from which his financial condition and business transactions might be ascertained. Appellant operated an art gallery, wherein paintings and other works of art were consigned to and sold by him. He claims there was no substantial evidence to support certain essential findings of the Referee. General Order No. 47 of the General Orders in Bankruptcy required the District Court to accept the Referee’s findings unless clearly erroneous. Likewise, we are required to accept those findings unless clearly erroneous. United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948). Appellant urges that the facts are undisputed and, therefore, this Court should review the entire record anew or de novo. While under certain circumstances, the appellate court may take this position, it should not do so where the basic and undisputed facts are fairly susceptible of diverse inferences requiring different conclusions. In such a case, the determination made by the trier of the facts is conclusive unless the finding is clearly erroneous. Hoppe v. Rittenhouse, 279 F.2d 3, 9 (9th Cir. 1960). We must keep in mind that the appellant was before the Referee on at least four different occasions attempting to give an explanation of why he didn’t keep better books or records and on the issue of what happened to the books and records which he had kept, some of which, evidently, disappeared after the adjudication in bankruptcy and between the hearings. We are not here dealing with conclusions of law, such as discussed in In re Haithcock, 165 F.Supp. 182 (M.D.N.C.1958). Moreover, the concurrent findings of the Referee and the District Court are not to be set aside except upon a clear demonstration of a mistake. Hilliard v. Hollins, 290 F.2d 263, 265 (6th Cir. 1961). In the last analysis, even if we try the case de novo" }, { "docid": "7096495", "title": "", "text": "determine whether a constructive contempt has been committed should conform to the established practice in like cases in all other United States courts as near as may be, and what is legally sufficient to purge a contempt in the other courts of the United States is sufficient to purge the like contempt in a court of bankruptcy. Id. at 135 (emphasis added). The Boyd decision, therefore, stands for the proposition that when the federal district court, an Article III court, was vested with bankruptcy jurisdiction, and then acted in its capacity as the “court of bankrupt cy,” it became inherently vested with the power of contempt to deal with bankruptcy matters. That power was not exceeded by finding a contempt where the contemptuous behavior occurred before the referee and the referee certified those facts to the district court judge. The Boyd case cannot be read as supporting the proposition that the “bankruptcy court” of the 1978 Code, an entity “separate” from the district court, has inherent contempt powers. Following Boyd, those cases where the “bankruptcy court” imposed contempt sanctions show that the power was actually exercised by a judge of a United States District Court. See, e.g., Morehouse v. Giant Powder Co., 206 F. 24 (9th Cir.1913) (fine for disposing of bankrupt’s property upheld); In re Fortunaxo, 128 F. 622 (S.D.N.Y.1908). The Boyd case and decisions subsequent to it are also clear in holding that the referee, at least prior to the adoption of the 1973 Rules, had no power to punish for contempt. Only the district court judge, acting in his capacity of judge of the bankruptcy court had that power. In re Rubin, 378 F.2d 104 (3d Cir.1967); O’Hagan v. Blythe, 354 F.2d 83 (2d Cir.1965); In re Haring, 193 F. 168, 170-73 (W.D.Mich.1912), aff’d, 203 F. 229 (6th Cir.), cert. denied, 229 U.S. 621, 33 S.Ct. 1049, 57 L.Ed. 1355 (1913). The applicable statute required the referee to certify to the district judge the facts giving rise to the alleged contempt. 11 U.S.C. § 69(b). In sum, it is conclusive that until the adoption of the 1973" }, { "docid": "12190131", "title": "", "text": "removal; (3) denied appellee’s motion insofar as it requested a vacation of the balance of appellant’s order to show cause of February 3, 1967, but (4) denied the motion of appellant to prohibit the Referee-appellee from acting because of “interest.” Unfortunately, the “hearing” before the Referee with respect to his alleged interest under Section 67(b) appears to have been halted by the Referee himself and, hence, never to have resulted in any definitive determination by the Referee. The District Court filed no findings of fact, no conclusions of law and no opinion and only from an examination of the lengthy record of argument, from which we are forced to quote extensively, are we able to ascertain the Court’s views. In a bankruptcy case, the scope of this Court’s review is limited to the record and to that which was presented below. Fortner & Perrin, Inc. v. Smith, 327 F.2d 801, 809 (9th Cir. 1964). We are compelled to observe that the District Judge had an inadequate record before him since the Referee himself had limited it. I. Interest — Title 11 U.S.C. § 67(b) This section in its pertinent part is as follows: “(b) Referees shall not * * * act in cases in which they are directly or indirectly interested * * We agree with the two Circuits which have considered the matter that 28 U.S.C. § 144 referring to disqualification of a “judge” does not apply to disqualification proceedings brought against bankruptcy referees. Ginger v. Cohn, 255 F.2d 99 (6th Cir. 1958); Fish v. East, 114 F.2d 177 (10th Cir. 1940). See In re J. P. Linahan, 138 F.2d 650, 651 n. 3 (2nd Cir. 1943) in which we left open the question of the applicability of Section 144’s predecessor to a special master. Even though Section 144 is not applicable by its terms, practice under that section is germane to a proceeding against a referee. See In re McFerren, 5 F.Supp. 180, 181 (E.D.111.1933); 2 Collier on Bankruptcy, ¶ 39.13 (1966). Practices under Section 144 are as follows: (1) The trial court has a duty to pass" }, { "docid": "4660013", "title": "", "text": "proceedings. The court shall accept the referee's findings of fact unless they are clearly erroneous, and shall give due regard to the opportunity of the referee to judge of the credibility of the witnesses. 11 U.S.C. Bankruptcy Rule 810. Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98 (3d Cir.1981), which involved the abandonment of personal property, illustrates the application of this rule. In that case, the bankruptcy court had found an intent to abandon the property; the district court reversed. In evaluating the determination of intent as a finding of fact and the standard of review appropriate to the district court, the Third Circuit stated: A person’s state of mind is a narrative or historical fact, albeit one that often must be determined by drawing inferences from evidence of his conduct and the surrounding circumstances. Drawing such inferences does not, however, require application of a legal standard to historical facts; it demands application of logic and human experience and the inference drawn as to intent is a statement of fact and not a holding of law. The district court did not set aside any of these basic findings .... The district court chose, however, to emphasize other facts not mentioned in the bankruptcy court’s opinion and to draw opposing inferences from the record. In doing so, the district court erred. A reviewing court may not substitute its own findings for those of the primary tribunal merely because it finds other inferences more likely. Id at 104 (citations omitted). The Third Circuit thus reversed the district court and reinstated the bankruptcy court’s decision. See also In re Multiponics, Inc., 622 F.2d 709, 723 (5th Cir.1980) (“An appellate court may not consider the evidence de novo ... and must be particularly reluctant to disregard a finding based on evaluation of testimony drawing credibility into question”); Tepper v. Chichester, 285 F.2d 309, 312 (9th Cir.1960) (“the findings of the referee on questions of intent ... are questions of fact, or in some instances, mixed questions of law and of fact, and the findings of the referee ... will not be" }, { "docid": "23531785", "title": "", "text": "BONE, Circuit Judge. Appellant Burchett filed a voluntary petition in bankruptcy and was adjudicated a bankrupt on December 12, 1949. The referee in bankruptcy subsequently sustained objections to- his discharge which had been filed by the trustee in bankruptcy, G. E. Myers, and a creditor, Jerry Zolezzi, and entered an order denying discharge. On petition for review the District Judge affirmed the order and Burchett has appealed. The District Judge rejected as clearly erroneous all findings of the referee except those sustaining trustee’s objection No. 1 and Zolezzi’s objection No. 1. We therefore need not concern ourselves with certain other objections made by Zolezzi and sustained by the referee. The two objections which are here in issue were grounded upon allegation that the bankrupt failed to keep or preserve adequate books of account or records from which his financial condition and business transactions could be ascertained. Appellant contends that the referee erred in allowing amendments to the specifications of objection of the trustee and Zolezzi after the last day fixed for the filing of objections, which was June 12, 1950. It appears that when the trustee filed his specification of objection on June 10, 1950, it had not been verified. The referee permitted verification-at the time of the hearing on the objections to discharge on July 17, 1950. Lack of verification is not fatal-The defect may be waived. In re Baerncopf, D.C.E.D.Pa., 117 F. 975; 1 Collier on Bankruptcy 1279 (14th Ed. 1940). The lack of verification may be supplied by amendment. In re Shanks, D.C.D.Minn., 19 F.2d 796; In re Hanna, 2 Cir., 168 F. 238; 1 Collier on Bankruptcy 1279 (14th Ed.1940). When the referee at the hearing orally gave the trustee permission to verify the specification, counsel for appellant, who was present, remarked: “I won’t make any contention that it has to be verified.” This was an express waiver of the defect. Even absent a waiver, it was plain'y within the discretion of the referee to permit the verification by amendment. The referee also permitted amendment of the specifications of objection of Zolezzi. As filed on June" }, { "docid": "279211", "title": "", "text": "elect a trustee of the bankrupt estate. “Their privilege is not exhausted by mischance in the first attempt at its exercise.” Therefore, the decision of the Referee is hereby reversed and he is accordingly directed to hold another election. This disposition makes it unnecessary to consider his refusal to reopen the proceedings to inquire into the propriety of the solicitation of any claims. This is an order. . See, 2 Collier on Bankruptcy (14th Edition) If 45.04, pp. 1703-1704; cf., In Re National Discount Corporation, W.D.S.C. 1961, 196 F.Supp. 766; In Re Seider, E.D.N.Y.1908, 163 F. 138. . As expressed in 2 Collier on Bankruptcy (14th Edition) If 45.03, p. 1703, “even if creditors or their representatives vote for a candidate who could not be approved by the court, this does not make their votes a nullity so that the opposing candidate must be declared elected.” See also, In Re Sodus Packing Co., Inc., W.D.N.y.1932, 1 F.Supp. 445; In Re House of Price, Inc., S.D.N.Y.1949, B 86129, 1 CCH Bankruptcy Law Reporter (4th Edition) H 5064.24, p. 5172. . See, e. g., In Re Van de Mark, W.D.N.Y.1910, 175 F. 287; In Re Margolies, E.D.N.Y.1911, 191 F. 369 ; In Re Mackellar, D.C.Pa.1902, 116 F. 547. . 2 Collier on Bankruptcy, supra, If 44.11, p. 1660. . 2 Remington on Bankruptcy (Henderson Revision) 1104-1105, pp. 561-563, This view also lias the support of other writers on the subject. See, Herzog, The' Election of a Trustee, 34 Ref.J. 73, 80 (July 1960) ; Bare, Trustees, 1 Proceedings of the Seminar for Newly Appointed Referees in Bankruptcy (1964), pp. 144-145. . A subsequent opinion in the same case also posed the problem. See, In Re Eloise Curtis, Inc., S.D.N.Y.1965, 242 E.Supp. 806. . The legislative history is of little help in interpreting this phrase. What is available seems to support the Court’s conclusion. Thus, the Senate Report couples “fails to qualify” with the bond requirement when it states that “If a trustee appointed by the creditors fails to qualify, an appointment is made by the court and the court is also given" }, { "docid": "8962085", "title": "", "text": "action in any way.” 2 W. Collier, Bankruptcy, 1141.09, at 1599 (14th ed. 1978). Several cases have followed this approach and have found that the district court’s factual findings should be wholly independent of those made by the referee; there is no mention in these cases of a different standard for findings based on credibility. See In re Rubin, 378 F.2d 104, 108 (3d Cir.1967); O’Hagan v. Blythe, 354 F.2d 83, 84-85 (2d Cir.1965). In any event, regardless of whether greater weight should be given to findings based on credibility, it is clear that the district court was not under any circumstances bound by the referee’s findings of fact in contempt proceedings under § 69. It appears to have been somewhat unsettled whether, under § 69, the district court should hear testimony and/or receive evidence. It might be inferred that the general rule, at least at one time, was that no evidence was allowed, for there would have been no reason for a judge to have deferred to the referee’s credibility determinations, see, supra, if the judge was free to rehear testimony. In at least some circumstances, however, district courts did receive evidence and hear testimony, for Remington’s treatise noted that some courts had held in cases involving criminal contempt that the referee’s certificate constituted nothing more than a pleading and that the court was required to hear the evidence. See 9 H. Remington, Bankruptcy Law, § 3548, at 173-74. In fact, district courts received evidence, not only in criminal contempt cases, see, e.g., In re McIntosh, 73 F.2d 908 (9th Cir.1934); Haimsohn v. United States, 2 F.2d 441 (6th Cir.1924); Davidson v. Wilson, 286 F. 108 (3d Cir.1923); McNeil v. McCormack, 182 F. 808 (5th Cir.1910), but also in civil proceedings in which the alleged contemnor was threatened with coercive incarceration. See, e.g., Berkhower v. Mielzner, 29 F.2d 65 (6th Cir.1928); In re Goodrich, 184 F. 5 (1st Cir.1910). This differential treatment of cases involving incarceration is most likely attributable to the greater seriousness with which incarceration has traditionally been viewed. In sum, then, the following observations about the" }, { "docid": "7134574", "title": "", "text": "to doubt that the referee took these factors into account in determining the allowance for the services that were properly compensable. Although a somewhat higher allowance might have been warranted, courts of appeals are properly “reluctant,” as we stated in In re Paramount Merrick, Inc., supra, “to overturn the determination” of the referee and the district judge “unless it can be shown that the allowance was arbitrary and unreasonable.” The allowance amounts to 6.5% of the estate, only .6% less than the 1966 national average, see Administrative Office of the United States Courts, Division of Bankruptcy Administration, Tabulation of Costs of Administration 1966. While this would not be determinative if unusual services were involved, see Jacobowitz v. Double Seven Corp., 378 F.2d 405, 407 (9 Cir. 1967) (majority opinion), it provides some assurance that there was no unfairness in a case like this where the services required, while not insubstantial, were in no way extraordinary. Judgment affirmed. . The accounts he collected without litigation yielded about $500; those whose collection required litigation apparently yielded even less. . The Report of the Proceedings of the Judicial Conference of the United States held on March 30-31, 1967 noted at p. 34 that the Committee on Bankruptcy Administration “recommended that General Orders 42 and 44 be closely observed and no attorney’s fee be allowed without an appropriate and detailed fee application which should include professional duties only and should never be based on du-' ties properly performed by a trustee, receiver or other non-professional officer.” . Since § 72 of the Act as amended in 1938 limits the trustee’s compensation only for services required of him, see In re Ira Haupt & Co., 361 F.2d 164, 166 (2 Cir. 1966), some districts have sought to produce somewhat larger individual compensation without burdening the estate, and also to avoid line-drawing problems, by appointing trustees who are also lawyers as attorneys pro se upon proper petition under General Order 44. See Proceedings of Third Seminar for Referees in Bankruptcy 13 (1966); 3 Collier on Bankruptcy § 62.12; 4A id. § 72.01. This procedure would seem" }, { "docid": "14700531", "title": "", "text": "1937); Fazakerly v. E. Kahn’s Sons Co., 75 F.2d 110 (5th Cir. 1935). As above noted, the hearing by Referee Charleville on appellants’ petition for compensation was informal. No issues of fact or law were framed, no testimony was taken, and no findings of fact or conclusions of law were made. In our view such order was purely an administrative order subject to reconsideration and rexamination by Referee Charleville or his successor in office, Referee Seymour, until the bankruptcy estates were closed. Referee Charleville’s order was not a final one to which the 1960 amendment to § 39(c) of the Bankruptcy Act applies. Appellants further contend that should we find that Referee Charleville’s order did not become final and was subject to reconsideration by Referee Seymour, that the orders made by Referee Seymour constitute an abuse of discretion. We are unable to agree. We have examined the record in this case. We find that the findings of fact of Referee Seymour are fully supported. We are bound by the rule that the findings of fact of the Referee in Bankruptcy must be adhered to unless they are found to be “clearly erroneous.” General Order in Bankruptcy No. 47; Tepper v. Chichester, 285 F.2d 309 (9th Cir. 1960), Rehearing Denied, Feb. 1, 1961. The order appealed from is affirmed." }, { "docid": "8962084", "title": "", "text": "the referee’s findings of fact. It is not, however, completely clear how much weight the district judge was to give to such findings. One treatise has stated that, “[w]ith respect to direct contempts, in the presence of the referee or within his personal knowledge, the referee’s certificate is entitled to a good deal of weight.” 9 H. Remington, Bankruptcy Law, § 3547, at 170 (6th ed. 1955). The treatise goes on to note, however, that where the referee’s findings are not based on a judgment as to the credibility of the witnesses before him, but rather on the inferences to be drawn from either conflicting testimony or the evidence submitted, the district court is under no obligation to accept or adopt the referee's findings. Id. at 172. More recent sources do not appear to distinguish between findings based on credibility and findings which are not so based. The Fourteenth Edition of Collier’s treatise on bankruptcy law merely states that the referee’s certificate of facts “is not binding upon the judge nor does it conclude his action in any way.” 2 W. Collier, Bankruptcy, 1141.09, at 1599 (14th ed. 1978). Several cases have followed this approach and have found that the district court’s factual findings should be wholly independent of those made by the referee; there is no mention in these cases of a different standard for findings based on credibility. See In re Rubin, 378 F.2d 104, 108 (3d Cir.1967); O’Hagan v. Blythe, 354 F.2d 83, 84-85 (2d Cir.1965). In any event, regardless of whether greater weight should be given to findings based on credibility, it is clear that the district court was not under any circumstances bound by the referee’s findings of fact in contempt proceedings under § 69. It appears to have been somewhat unsettled whether, under § 69, the district court should hear testimony and/or receive evidence. It might be inferred that the general rule, at least at one time, was that no evidence was allowed, for there would have been no reason for a judge to have deferred to the referee’s credibility determinations, see, supra, if" }, { "docid": "279210", "title": "", "text": "nominated or if the trustee so nominated fails to qualify within five days after notice to him of the entry of such order, a trustee shall be appointed as provided in section 44 of this Act.” (Emphasis supplied) The phrase “fails to qualify within five days” is tied into the bond requirement because Section 50(b) states that “Receivers and trustees, before entering upon the performance of their official duties and within five days after their appointment * * * shall qualify by entering into bond to the United States.” (Emphasis supplied) Thus, Section 378 permits the Referee to appoint a trustee only when the one selected fails to post a bond and not when he is disapproved for any other reason. There is no reason to accord a different construction to the term “fails to qualify” when it is used in Section 44(a). While the resolution of this problem is not crystal clear, any doubts should be resolved in favor of that interpretation which allows the creditors the most latitude in exercising their right to elect a trustee of the bankrupt estate. “Their privilege is not exhausted by mischance in the first attempt at its exercise.” Therefore, the decision of the Referee is hereby reversed and he is accordingly directed to hold another election. This disposition makes it unnecessary to consider his refusal to reopen the proceedings to inquire into the propriety of the solicitation of any claims. This is an order. . See, 2 Collier on Bankruptcy (14th Edition) If 45.04, pp. 1703-1704; cf., In Re National Discount Corporation, W.D.S.C. 1961, 196 F.Supp. 766; In Re Seider, E.D.N.Y.1908, 163 F. 138. . As expressed in 2 Collier on Bankruptcy (14th Edition) If 45.03, p. 1703, “even if creditors or their representatives vote for a candidate who could not be approved by the court, this does not make their votes a nullity so that the opposing candidate must be declared elected.” See also, In Re Sodus Packing Co., Inc., W.D.N.y.1932, 1 F.Supp. 445; In Re House of Price, Inc., S.D.N.Y.1949, B 86129, 1 CCH Bankruptcy Law Reporter (4th Edition) H" }, { "docid": "23444113", "title": "", "text": "has demonstrable validity. The facts of the present case do not show that § 39c violates due process. While the unhappier consequence of § 39c might be relieved by intelligent rulemaking, this Court has no such power. Affirmed. . 74 Stat. 528 (1960) . See 2 Collier, Bankruptcy H39.20 at 1492, notes 8 and 8(a). (14th Ed. Moore 1966). This court had held in Oppenheimer v. Oldham, 5 Cir. 1949, 178 F.2d 386, that the District Court did have power to extend the time to review for cause. . The courts have so held. In the Matter of Acme Furnace Fitting Co., 7 Cir. 1962, 302 F.2d 318, cert. denied Biggs v. Acme Furnace Fitting Co., 371 U.S. 853, 83 S.Ct. 89, 9 L.Ed.2d 88 (1962), reh. denied 371 U.S. 906, 83 S.Ct. 209, 9 L.Ed.2d 168 (1962). In the Matter of Friedman & Belack, Inc., E.D.Pa.1965, 248 F.Supp. 961; In the Matter of Danenza, E.D.N.Y.1962, 200 F.Supp. 694, 695; In re Harnik, W.D.Ark.1962, 207 F.Supp. 325. See In the Matter of Sorenson, D.Utah 1963, 215 F.Supp. 814; Thorndal v. Smith, Wild, Beebe & Cades, 8 Cir. 1965, 339 F.2d 676; In re Beverly Hills Security Investments, D.Ariz.1964, 233 F.Supp. 737. But see In re Terrace Superette, W.D.Wisc.1964, 229 F.Supp. 371 (in which the District Court reviewed the order of a referee which, the court said, directly violated § 2a(15) of the Act, 11 U.S.C.A. § 11(a) (15), by enjoining a state court proceeding); Smith v. Hill, 9 Cir., 1963, 317 F.2d 539 (this case involved a reconsideration by one referee of another referee’s earlier decision in the same cause. Section 39c treats specifically only the question of vertical review by a district court, and not horizontal reconsideration by a referee) . . The November 2nd petition was filed fewer than ten days after the October 28th order, but we cannot construe that petition as referring to anything other than the September 30th order. . Bankruptcy Act, § 50. The referee may extend that period to ten days, but nothing in the present record shows any extension. . Section 58," }, { "docid": "7542809", "title": "", "text": "as a matter of practice, still adhered to. In other words, by a literal construction of the present Order 44, the attorney’s adverse interest, if any, could be disclosed to the Referee in any prior proceedings or documents rather than only by the attorney’s affidavit. But more important, however, is the fact that the limiting language in the present Order 44, “in any matter upon which he is employed for such * * * trustee,” is not found in the old Order 44. Consequently, under the present Order 44 any disqualifying adverse interest of the attorney is restricted to the particular proceeding for which the attorney is engaged. These differences render inapposite cases decided before the 1933 changes in General Order 44. The only other case cited by the Referee is distinguishable on its facts. In conclusion, it should be added that the Court is fully cognizant that the purpose of General Order 44 is to prevent a dilution or maladministration of the assets of the estate by reason of an attorney’s conflict of interest which might enable a creditor or creditors represented by him to secure an advantage or preference over other creditors of the estate. In this case it finds that the wording and spirit of General Order 44 have been observed and fairness and equity require that McLanahan, whose efforts produced most, if not all, of the assets distributable to the general creditors, should be rewarded by adequate compensation. Consequently, the ease is remanded to the Referee for the purpose of awarding a fair and just compensation. This is an order. . In re Itemlab, Inc., E.D.N.Y.1961, 197 F.Supp. 5. . Cherno v. Dutch-American Mercantile Corporation, 2 Cir.1965, 353 F.2d 147. . See e. g., Tepper v. Chichester, 9 Cir. 1960, 285 F.2d 309, 312; In re Dejay Stores Inc., S.D.N.Y.1963, 220 F.Supp. 497, 500; In re Stewart, D.C.Oregon 1964, 233 F.Supp. 89. . 11 U.S.C.A. following § 53. . Section 47a (8) of the Bankruptcy Act, 11 U.S.C.A. § 75a (8). . In re Itemlab, Inc., E.D.N.T.1961, 197 E. Supp. 194. . In re H. L." } ]

[ { "docid": "8757475", "title": "", "text": "4(d)(4) does not obviate the requirement of personal service under Fed.R.Civ.P. (4)(d)(l) where the action is in substance against a federal official in his individual capacity. See Relf v. Gasch, 167 U.S.App.D.C. 238, 242, 511 F.2d 804, 808 n. 18 (1975); Griffith v. Nixon, 518 F.2d 1195 (2d Cir. 1975); Mecartney v. Hoover, 151 F.2d 694 (7th Cir. 1945); 2 Moore’s Federal Practice ¶ 4.29 at 1206 (2d ed. 1977). The affidavits of service filed by the special process server do not indicate where defendants Dickerson and Magee were served. The marshal’s service forms reflect that defendant Aeree was served in Virginia and that personal service on defendant O’Brien was accomplished in Hollywood, Florida. Plaintiff has failed to plead a rule or statute authorizing extra-territorial service in the manner shown by the marshal’s returns. See Fed.R.Civ.P. 4(d)(7) and 4(f). 28 U.S.C. § 1391(e) does, however, allow for extra-territorial service by certified mail. The Court assumes that the always preferred method of personal service made beyond the territorial limits of the District of Columbia is within the permissive service provisions of Section 1391(e) as well. The issue before the Court is whether “given proper service under Fed.R.Civ.P. 4(d)(1), is service also required in compliance with Fed.R.Civ.P. 4(d)(5) in a suit against a federal officer in his individual capacity where the actions complained of relate to his or her duties?” Plaintiff admits that he has not served the United States in compliance with Fed.R.Civ.P. 4(d)(5) and argues that such service is not required. As previously noted, plaintiff does not request relief which would affect defendants in their official capacities but only asserts individual liability. See Green v. Laird, 357 F.Supp. 227, 229-330 (N.D.Ill. 1973). Although the action is formally brought against each defendant “in his indi vidual capacity” there exists a readily apparently distinction between suits brought against a federal officer for acts performed in a purely personal capacity (e. g. breach of contract to purchase a private residence) and those alleging that a federal officer exceeded the limits of his authority while acting under color of legal authority as in the" } ]

[ { "docid": "23597038", "title": "", "text": "Upon an individual ... by delivering a copy of the summons and of the complaint to him personally or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process. “(6) Upon a state or municipal corporation or other governmental organization thereof subject to suit, by delivering a copy of the summons and of the complaint to the chief executive officer thereof or by serving the summons and complaint in the manner prescribed by law of that state for the service of summons or other like process upon any such defendant. “(7) Upon a defendant of any class referred to in paragraph (1) . . . , it is also sufficient if the summons and complaint are served in the manner prescribed by any statute of the United States or in the manner prescribed by the law of the state in which the district court is held for the service of summons or other like process upon any such defendant in an action brought in the courts of general jurisdiction of that state.” Thus, Rules 4(d)(1) and 4(d)(7) govern the service on the “individual defendants,” Rule 4(d)(6) the service on the “City defendants.” Rather than reflecting service on the “individual defendants” in compliance with either 4(d)(1) or 4(d)(7) by personal service, “residence” service, agent service, or service in compliance with Michigan law, the marshall’s return reflects only that the summons and complaint were served on the secretary to the city clerk and on the city director of elections. Though the amended complaint fails to reflect whether the individuals were sued in their official or their individual capacities, even if they were sued in their official capacities, proper service of process would still be necessary to obtain personal jurisdiction over those officials. Gozdanovic v. Civil Serv. Comm’n, 361 F.Supp. 504 (W.D.Pa.1973); Bell v. Hosse, 31 F.R.D. 181, 184 (M.D.Tenn.1962). As in Hosse," }, { "docid": "14727824", "title": "", "text": "their individual, rather than their official, capacities, personal jurisdiction over the individual defendants is necessary to maintain a Bivens claim. See Delgado v. Bureau of Prisons, 727 F.Supp. 24 (D.D.C.1989); Lawrence v. Acree, 79 F.R.D. 669, 670 (D.D.C.1978). Proper service of process upon defendants is necessary to obtain jurisdiction over defendants in their individual capacities. Pollack v. Meese, 737 F.Supp. 663, 666 (D.D.C.1990). Failure, therefore, to perfect service of process is fatal to a Bivens action. Id. Rule 4 of the Federal Rules of Civil Procedure requires that a copy of the summons and complaint be delivered to the defendant (or his appointed agent) personally, or be left “at his [or her] dwelling house or usual place of abode with some person of suitable age and discretion” who resides there. Fed.R.Civ.P. 4(e)(2). Service on the Attorney General and the United States Attorney for the district in which the action is brought, pursuant to the rules applicable to suits against officials in their official capacity “does not obviate the requirement of personal service ... where the action is against a federal official in his [or her] individual capacity.” Lawrence, 79 F.R.D. at 670. Accordingly, because Plaintiff has failed to effect service of process on the Defendants, the Court is unable to exercise jurisdiction over them and the Bivens action against them must therefore be dismissed. B. The Court cannot exercise jurisdiction over Defendants Clemmons and Brooks. The District of Columbia long arm statute, D.C.Code § 13-423, is the only basis upon which personal jurisdiction may be obtained over defendants who do not reside within or maintain a principal place of business in the District of Columbia. Reuber v. United States, 750 F.2d 1039, 1049 (D.C.Cir.1984). The statute provides that a court in the District of Columbia may exercise personal jurisdiction over a defendant with regard to a claim arising from the defendant’s (1) transacting any business in the District of Columbia; (2) contracting to supply services in the District of Columbia; (3) causing tortious injury in the District of Columbia by an act or omission in the District of Columbia; (4)" }, { "docid": "20321075", "title": "", "text": "state a claim upon which relief can be granted (Rule 12(b)(6)). Counsel for Dr. Sullivan and the United States doubtless combined these objections in one motion because a party choosing to file a Rule 12(b) motion “must include all defenses and objections then available to him that Rule 12 permits to be made by motion,” Chaeles Alan Wright, The Law of Federal Courts 434-35 (4th ed.1983). If the party only raises a Rule 12(b)(6) objection, then the party has waived insufficiency of service of process and lack of personal jurisdiction. Fed.R.Civ.P. 12(h)(1). As to Dr. Sullivan, the district court dealt first with his defense that service was insufficient under Fed.R.Civ.P. 4(e) because (as Dr. Simpkins conceded) he had not been personally served. Rule 4(e) governs service of process on individuals. Service on a federal “officer” is governed by Rule 4(i)(2), which requires service by certified mail upon not only the officer but also the United States. Was Dr. Sullivan an individual or an officer for the purposes of Rule 4? The district court held that he was being sued as an individual. The court treated the breach of contract and denial of due process claims (counts 1 and 2) against him as Bivens claims. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Dr. Simpkins does not contest this view of counts 1 and 2 and we shall assume it to be correct. A Bivens suit is an action against a federal officer seeking damages for violations of the plaintiff’s constitutional rights. These suits are, the court said, actions against federal officers in their individual capacity, not their official capacity. Relying on Pollack v. Meese, 737 F.Supp. 663 (D.D.C.1990), the court therefore held that Rule 4(e) controlled and that personal service was necessary. Accord Navy, Marshall & Gordon v. U.S. Int’l Development-Cooperation Agency, 557 F.Supp. 484, 489 (D.D.C.1983); Deutsch v. U.S. Dep’t of Justice, 881 F.Supp. 49, 52 (D.D.C.1995). Whether this is a correct view of Rule 4 is a question this court has never specifically addressed." }, { "docid": "13166383", "title": "", "text": "1988 claim, and the Complaint fails to state a claim upon which relief can be granted. Sovereign immunity bars any claims against the defendants in their official capacities. Furthermore, the defendants are entitled to qualified immunity- A. The plaintiff’s claims must be dismissed for want of jurisdiction, improper venue, and failure to state a claim upon which relief can be granted. 1. The Court cannot exercise jurisdiction over defendants Booher, Warren, Zambrano, and Stickler. The District of Columbia long arm statute, D.C.Code § 13-423, is the only basis upon which personal jurisdiction may be obtained over defendants who do not reside within or maintain a principal place of business in the District of Columbia. Reuber v. United States, 750 F.2d 1039, 1049 (D.C.Cir.1984). The statute provides that a court in the District of Columbia may exercise personal jurisdiction over a defendant with regard to a claim arising from the defendant’s (1) transacting any business in the District of Columbia; (2) contracting to supply services in the District of Columbia; (3) causing tortious injury in the District of Columbia by an act or omission in the District of Columbia; (4) causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he [or she] regularly does or solicits business, [or] engages in any other persistent course of conduct ... in the District of Columbia. D.C.Code § 13-423(a)(l)-(4) (1981). Defendants Booher is an employee of the Federal Bureau of Prisons who works at the FCI Memphis in Memphis, Tennessee. Defendants Warren, Zambrano, and Stickler are Florida State Attorneys. Because these defendants are not alleged to conduct any business or make any contracts for services in the District of Columbia and because no injury is alleged to have been suffered in the District of Columbia, the Court cannot exercise jurisdiction over them. 2. Venue does not lie in this district for any potential Bivens or § 1983 claim. 28 U.S.C. § 1391(e), the applicable venue provision for suits against federal officials in their official capacities, is inapplicable to suits against such officials in their individual" }, { "docid": "571583", "title": "", "text": "their needs, denominated Unit 10. II. Equal Protection and § 1985 Claims Plaintiff filed this complaint against defendants alleging that they abridged his right to equal protection under the Fifth Amendment and conspired to deny him his rights in violation of 42 U.S.C. § 1985. This matter must be dismissed for lack of personal service of process against and personal jurisdiction over Defendant Kindt. This matter must be dismissed against both Defendants Kindt and BOP for failure to state a claim upon which relief can be granted. A. Lack of Personal Service Against and Personal Jurisdiction Over Defendant Kindt Service of process against a federal employee who is sued in his individual capacity must be pursuant to FED.R.CIV.P. 4(d)(1). See Lawrence v. Aeree, 79 F.R.D. 669, 670 (D.D.C.1978), aff'd, 665 F.2d 1319 (D.C.Cir.1981); Navy, Marshall & Gordon v. United States International Development-Corporation Agency, 557 F.Supp. 484, 489 (D.D.C.1983). Rule 4(d)(1) provides that service upon an individual, other than an infant or incompetent person, shall be made by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process. In the instant case, although the United States Attorney’s Office was properly served pursuant to FED.R.CIV.P. 4(d)(4), such service “does not obviate the requirement of personal service under Fed. R.Civ.P. 4(d)(1) where the action is in substance against a federal official in his individual capacity.” Lawrence, 79 F.R.D. at 670. Accordingly, in the absence of service of process, this action cannot proceed against Defendant Kindt. This Court also does not have jurisdiction over Defendant Kindt where Plaintiff’s § 1985 complaint seeks relief against the personal resources of him in his individual capacity. Defendant Kindt was not personally served within the District of Columbia, is not a resident of the District of Columbia, and is not within the" }, { "docid": "14727823", "title": "", "text": "continued incarceration illegal and effect his immediate release. Plaintiff was subsequently released from federal custody. II. DISCUSSION Plaintiff’s Bivens claims must be dismissed for want of jurisdiction, for improper venue, and for failure to state a claim upon which relief can be granted. Plaintiff invokes Bivens v. Six Unknown Named Agents, 403 U.S. 388, 397, 91 S.Ct. 1999, 2005, 29 L.Ed.2d 619 (1971), as the basis for recovery against the various Defendants in their individual capacities. However, because Plaintiff has failed to perfect service against any of the individual Defendants, because the Court would be unable to exercise personal jurisdiction over the nonresident Defendants, because venue does not lie in this district for Plaintiff’s Bivens claims, and because Plaintiff has failed to satisfy the heightened pleading standard applicable to suits against government officials in their individual capacities, his Bivens claims must be dismissed. A. The Court is unable to exercise jurisdiction over the Defendants because Plaintiff has failed to effect proper service of process on them. Because Bivens suits are suits against government officials in their individual, rather than their official, capacities, personal jurisdiction over the individual defendants is necessary to maintain a Bivens claim. See Delgado v. Bureau of Prisons, 727 F.Supp. 24 (D.D.C.1989); Lawrence v. Acree, 79 F.R.D. 669, 670 (D.D.C.1978). Proper service of process upon defendants is necessary to obtain jurisdiction over defendants in their individual capacities. Pollack v. Meese, 737 F.Supp. 663, 666 (D.D.C.1990). Failure, therefore, to perfect service of process is fatal to a Bivens action. Id. Rule 4 of the Federal Rules of Civil Procedure requires that a copy of the summons and complaint be delivered to the defendant (or his appointed agent) personally, or be left “at his [or her] dwelling house or usual place of abode with some person of suitable age and discretion” who resides there. Fed.R.Civ.P. 4(e)(2). Service on the Attorney General and the United States Attorney for the district in which the action is brought, pursuant to the rules applicable to suits against officials in their official capacity “does not obviate the requirement of personal service ... where the" }, { "docid": "23021341", "title": "", "text": "Daly-Mur-phy contends that the VA and the individual defendants violated her free speech rights under the First Amendment, deprived her of her Fifth Amendment due process rights, and violated her Ninth Amendment privacy rights. She further argues that these alleged violations form the basis of a cause of action under 42 U.S.C. § 1983 and Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). There is no valid basis for a claim under section 1983, in that Daly-Murphy’s allegations are against federal officials acting under color of federal law. Section 1983 provides a remedy only for deprivation of constitutional rights by a person acting under color of law of any state or territory or the District of Columbia. See Broadway v. Block, 694 F.2d 979, 981 (5th Cir.1982). Thus, the only possible action is an action under the authority of Bivens. The threshold question which arises here is whether the defendants were properly served in their individual capacities. Daly-Murphy’s complaint and summons were served on the defendants by leaving them with Dan Flynn, Labor Relations, Authorized Agent at the Medical Center. Ap-pellees argue that while the defendants thus were properly served in their official capacity, appellant did not comply with Federal Rule of Civil Procedure 4(d)(1), which requires personal service of individuals; and thus defendants were not properly served in their individual capacities. Federal Rule of Civil Procedure 4(d)(1) provides that service will be made Upon an individual other than an infant or an incompetent person, by delivering a copy of the summons and of the complaint to him personally or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process. We require “substantial compliance with Rule 4.” Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir.1982). Rule 4 has generally been construed to mean that service at a defendant’s place of employment" }, { "docid": "10878022", "title": "", "text": "directly maintained by DC. Plaintiff’s Complaint alleges that the June 5, 2006 \"Notice of Escape” was also faxed. Complaint ¶ 55. . In the alternative, jurisdiction over defendants McLeod and Baldwin is proper because both were served within the District of Columbia (See McLeod Aff. of Service [13]; Baldwin Aff. of Service [12]). See Burnham v. Superior Court of California, 495 U.S. 604, 610, 110 S.Ct 2105, 109 L.Ed.2d 631 (1990) (\"Among the most firmly established principles of personal jurisdiction in American tradition is that the courts of a State have jurisdiction over nonresidents who are physically present in the State.”). Plaintiff argues that jurisdiction over Lap-pin, who waived service, can be justified in this manner as well, but the Court is not convinced. Plaintiff mailed the waiver to Lappin’s work address within the District. Plaintiff argues that because, when a waiver is filed, the Federal Rules of Civil Procedure \"apply as if a summons and complaint had been served at the time of filing the waiver,” Fed.R.Civ.P. 4(d)(4), the Court should consider Lappin to have been served in the District. The Court declines to do so because (a) the Rule does not specify the effect that waiver has on the place of service and (b) the Rules go on to note that \"[w]aiving service of a summons does not waive any objection to personal jurisdiction or to venue,” id. at 4(d)(5). . Although claims against White are dismissed here for lack of jurisdiction, those claims are also discussed below to establish two alternate grounds for dismissal: (1) lack of an available Bivens remedy and (2) qualified immunity. . The Complaint indicates that McLeod, White, Baldwin, Scott, and Lappin are named in their official and individual capacities. (Complaint ¶¶ 10-14.) However, suits for monetary damages — like this one — cannot be brought against federal officials in their official capacities unless sovereign immunity is waived. See Clark v. Library of Congress, 750 F.2d 89, 103 (D.C.Cir.1984) (\"Sovereign immunity ... bar[s] suits for money damages against officials in their official capacity absent a specific waiver by the government.”). So the claims" }, { "docid": "21203216", "title": "", "text": "their individual capacities must be served in accordance with the rules ordinarily applicable to non-federal individual defendants. Simpkins v. District of Columbia Gov’t, 108 F.3d 366, 368-69 (D.C.Cir.1997). Rule 4(e) of the Federal Rules of Civil Procedure governs service of process upon “individuals within a judicial district of the United States.” A plaintiff must serve a copy of the summons and complaint on the defendant (or his appointed agent) personally or leave the complaint and summons “at his dwelling house or usual place of abode with some person of suitable age and discretion” who lives there. Fed. R.Civ.P. 4(e). Service on the U.S. Attorney in the district where the action was brought pursuant to Fed.R.Civ.P. 4(i) “does not obviate the requirements of personal service under Fed.R.Civ.P. 4(d)(1) where the action is in substance against a federal official in his individual capacity.” Lawrence v. Acree, 79 F.R.D. 669, 670 (D.D.C.1978) (emphasis added). Service at a place of business does not satisfy the requirements for personal service. See Leichtman v. Koons, 527 A.2d 745, 747 & n. 5 (D.C.Cir.1987) (office employee with authority to receive business mail does not by virtue of his or her position have authority to receive process). Admittedly, Mr. Keller served the individual Defendants at their place of employment, ie., the Department of State. The Executive Director in the Executive Office of the Office of the Legal Advisor at The Department of State accepted service. See Declaration of Christopher R. Riche (“Riche Decl.”) ¶5, Def.’s Mem., Exh. A; PL’s Opp. at 8-9 (“We served defendants ... by serving the agent authorized to receive service, Chris Richey [sic], at the United States Department of State.”). However, Mr. Riche was authorized to receive, and by his stamp did receive, service against the individual Defendants only in their official capacities. Riche Decl. ¶ 5. The summons was issued on October 31, 2006; Mr. Riche accepted service in “official capacity only” on November 6, 2006, and no proper service on the individual Defendants has been effectuated since then. Mr. Keller asks for more time to serve the individual Defendants. Pl.’s Opp. at" }, { "docid": "11243053", "title": "", "text": "plaintiffs Bivens claim, it is well settled that sovereign immunity will not bar damage actions against federal officials who have been sued in their individual capacities for violation of a plaintiff’s constitutional rights. Id. However, a Bivens action may be maintained against a defendant only in his or her individual capacity, and not in his or her official capacity. See Ecclestiastical Order of the Ism of Am, Inc. v. Chasin, 845 F.2d 113, 116 (6th Cir.1988). It follows that in order for the plaintiff to bring the defendants before the court in their individual capacities, the ordinary requirements for exercise of in personam jurisdiction are fully applicable. See Griffith v. Nixon, 518 F.2d 1195 (2d Cir.), cert. denied, 423 U.S. 995, 96 S.Ct. 422, 46 L.Ed.2d 369 (1975). Accordingly, where damages are sought through a Bivens claim, personal service, and not service by certified mail, is necessary to obtain jurisdiction over a defendant in his capacity as an individual. Micklus v. Carlson, 632 F.2d 227, 240-41 (3d Cir.1980). The failure, therefore, to perfect individual service is fatal to a Bivens action. Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir.1987). Thus, the threshold question is whether the defendants were properly served in their individual capacities. Federal Rule of Civil Procedure 4(d)(1) requires personal service of a summons and complaint upon each individual defendant. Plaintiff would have had to accomplish personal service under Rule 4(d)(1) on the individuals and serve the United States accord ing to Rule 4(d)(5). Micklus, 632 F.2d at 240. Where money damages are sought from a public official in his individual capacity, such as in a Bivens action, service by certified mail under Rule 4(d)(5) is insufficient. See Relf, 511 F.2d at 808 n. 18; Micklus, 632 F.2d at 240. Thus, none of the defendants was properly served in their individual capacities. Micklus, 632 F.2d at 240; Kaiser v. Miller, 115 F.R.D. 504, 506 (D.D.C.1987). Accordingly, although plaintiff is proceeding pro se and in forma pauperis, the U.S. Marshal technically should have proceeded under Rule 4(d)(1) and effected personal service on defendants. Accordingly, because venue in this" }, { "docid": "11243052", "title": "", "text": "for the assertion of personal jurisdiction only if that persistent conduct is undertaken in that person’s individual capacity rather than an official capacity conducting business for his employer. Security Bank N.A., 347 F.Supp. at 516; Quinto v. Legal Times, 506 F.Supp. 554, 558 (D.D.C.1981). Defendant Turner, whose office is in Springfield, Missouri, surely does not transact any business in the District of Columbia. As to defendants Meese, Quinlan, and Wilkerson, they also do not (or, more accurately, did not) transact any business in the District of Columbia. Although the Department of Justice’s principal place of business may be in the District of Columbia, these defendants do not transact their individual business in the District of Columbia or maintain their individual places of business in the District of Columbia. Moreover, plaintiff has failed to allege any activities emanating from the Department of Justice that gave rise to his claims in this case. Therefore, there is no basis for this Court to assert personal jurisdiction over any of the defendants. III. Service of Process With regard to plaintiffs Bivens claim, it is well settled that sovereign immunity will not bar damage actions against federal officials who have been sued in their individual capacities for violation of a plaintiff’s constitutional rights. Id. However, a Bivens action may be maintained against a defendant only in his or her individual capacity, and not in his or her official capacity. See Ecclestiastical Order of the Ism of Am, Inc. v. Chasin, 845 F.2d 113, 116 (6th Cir.1988). It follows that in order for the plaintiff to bring the defendants before the court in their individual capacities, the ordinary requirements for exercise of in personam jurisdiction are fully applicable. See Griffith v. Nixon, 518 F.2d 1195 (2d Cir.), cert. denied, 423 U.S. 995, 96 S.Ct. 422, 46 L.Ed.2d 369 (1975). Accordingly, where damages are sought through a Bivens claim, personal service, and not service by certified mail, is necessary to obtain jurisdiction over a defendant in his capacity as an individual. Micklus v. Carlson, 632 F.2d 227, 240-41 (3d Cir.1980). The failure, therefore, to perfect individual service" }, { "docid": "14727825", "title": "", "text": "action is against a federal official in his [or her] individual capacity.” Lawrence, 79 F.R.D. at 670. Accordingly, because Plaintiff has failed to effect service of process on the Defendants, the Court is unable to exercise jurisdiction over them and the Bivens action against them must therefore be dismissed. B. The Court cannot exercise jurisdiction over Defendants Clemmons and Brooks. The District of Columbia long arm statute, D.C.Code § 13-423, is the only basis upon which personal jurisdiction may be obtained over defendants who do not reside within or maintain a principal place of business in the District of Columbia. Reuber v. United States, 750 F.2d 1039, 1049 (D.C.Cir.1984). The statute provides that a court in the District of Columbia may exercise personal jurisdiction over a defendant with regard to a claim arising from the defendant’s (1) transacting any business in the District of Columbia; (2) contracting to supply services in the District of Columbia; (3) causing tortious injury in the District of Columbia by an act or omission in the District of Columbia; (4) causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he [or she] regularly does or solicits business, [or] engages in any other persistent course of conduct ... in the District of Columbia. D.C.Code § 13-423(a)(1)-(4) (1981). Defendants Clemmons and Brooke are employees of the Federal Bureau of Prisons who work in Minnesota. Because these Defendants are not alleged to conduct any business or make any contracts for services in the District of Columbia and because no injury is alleged to have been suffered in the District of Columbia, the Court cannot exercise jurisdiction over them. C. Yenue does not lie in this district for PlaintifPs Bivens claims. 28 U.S.C. 1391(e), the applicable venue provision for suits against federal officials in their official capacities, is inapplicable to suits against such officials in their individual capacities; rather, venue in such suits is governed by 28 U.S.C. § 1391(b), which provides that A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as" }, { "docid": "14727822", "title": "", "text": "from a New York court for a term of 1-3 years. Plaintiff alleges, however, that the sentences were somehow deemed to have been served as of the dates they were imposed, id., ¶¶ 25-26, and that “[t]he action and or non-actions of the defendants ... individually and/or in conspiracy together ...” violated Plaintiffs rights under the Due Process Clause when the Defendants refused to release him from prison and did not more quickly “contact the courts to process plaintiffs [Judgment and Commitment Orders].” Id., ¶ 31. Plaintiff also claims that unspecified Defendants threatened him with disciplinary action because he made repeated telephone calls in an attempt to effect his release. Plaintiff seeks compensatory damages in the amount of five hundred dollars, and punitive damages in the amount of two hundred and fifty dollars, for every day he was allegedly incarcerated after the expiration of his sentence against each of the Defendants in their individual capacities. In addition, Plaintiff, who was incarcerated at the time he drafted his Complaint, sought to have the Court declare his continued incarceration illegal and effect his immediate release. Plaintiff was subsequently released from federal custody. II. DISCUSSION Plaintiff’s Bivens claims must be dismissed for want of jurisdiction, for improper venue, and for failure to state a claim upon which relief can be granted. Plaintiff invokes Bivens v. Six Unknown Named Agents, 403 U.S. 388, 397, 91 S.Ct. 1999, 2005, 29 L.Ed.2d 619 (1971), as the basis for recovery against the various Defendants in their individual capacities. However, because Plaintiff has failed to perfect service against any of the individual Defendants, because the Court would be unable to exercise personal jurisdiction over the nonresident Defendants, because venue does not lie in this district for Plaintiff’s Bivens claims, and because Plaintiff has failed to satisfy the heightened pleading standard applicable to suits against government officials in their individual capacities, his Bivens claims must be dismissed. A. The Court is unable to exercise jurisdiction over the Defendants because Plaintiff has failed to effect proper service of process on them. Because Bivens suits are suits against government officials in" }, { "docid": "9656939", "title": "", "text": "the Defendants’ contentions of Plaintiff's insufficient service of process over them as individuals; Plaintiff’s inability to sue for monetary damages in a Bivens case; Plaintiff's failure to satisfy the Bivens heightened standard of pleading; and individual Defendants' entitlement to immunity. Alternatively, even if this conclusion were erroneous, the Plaintiff's Complaint would certainly fail to meet the heightened Bivens standard of pleading. As our Circuit has stated, \"plaintiffs must, at the very least, specify the 'clearly established' rights they allege to have been violated with ... precision.\" Martin v. Malhoyt, 830 F.2d 237, 254 (D.C.Cir.1987) (citation omitted), reh'g denied, 833 F.2d 1049 (D.C.Cir.1987). Furthermore, the individual defendants are shielded from civil liability damages where their conduct is not in violation of established constitutional or statutory rights of which a reasonable person would know. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); Penthouse Int’l, Ltd. v. Meese, 939 F.2d 1011, 1016 (D.C.Cir.1991), cert. denied, - U.S. -, 112 S.Ct. 1513, 117 L.Ed.2d 650 (1992); Harris v. District of Columbia, 932 F.2d 10, 13 (D.C.Cir.1991). The Plaintiff's constitutional claims against the individual Defendants are far too vague to survive a 12(b)(6) motion under this standard. The Court does not read the Complaint to construe a claim against then President Bush, nor the 60 John or Jane Does, in their individual capacities. . In a limitation to this provision, D.C.Code § 13-423(b) “bars ... claims unrelated to the acts forming the basis for personal jurisdiction.\" Pollack v. Meese, 737 F.Supp. 663, 666 (D.D.C.1990) (citing Willis v. Willis, 655 F.2d 1333, 1336 (D.C.Cir.1981)). . In a motion, the Plaintiff argues that \"[t]he activities of the individual defendants in and around Washington, D.C.” warrant a finding of jurisdiction under Rochon v. F.B.I., 691 F.Supp. 1548 (D.D.C.1988). Response to Defendants' Motion to Dismiss or in the Alternative for Judgement on the Pleadings at 5. However, the defendants in Rochon were employed at FBI headquarters in the District, according to the complaint in that case. The CIA is headquartered in Arlington, Virginia. Moreover, in response to a 12(b)(6) motion, the Plaintiff's" }, { "docid": "12002803", "title": "", "text": "board was at the final revocation hearing, and the parole officer was entitled to absolute immunity because he was serving in a prosecutorial role during the preliminary revocation and final revocation hearings); Namey v. Reilly, 926 F.Supp. 5, 8-10 (D.Mass.1996) (holding that the probation officer was absolutely immune from liability where the probationer claimed that the Parole Commission based its decision to revoke his parole solely on the information that was provided in the probation officer's report). . Mr. Epps’s Bivens claims against the Individual Defendants also must be dismissed under Federal Rule of Civil Procedure 12(b)(5) because he has not filed proof that he has properly served them. If a plaintiff wants to pursue an action against a federal employee in his or her individual capacity, that individual must be served with process in accordance with Rule 4(e) of the Federal Rules of Civil Procedure. Simpkins v. District of Columbia, 108 F.3d 366, 369 (D.C.Cir.1997). Rule 4(e) provides that service is effectuated by (a) complying with the laws of the state in which the district court is located or (b) delivering a copy of . the summons and complaint to the defendant (or his appointed agent) personally, or by leaving copies thereof at the defendant's dwelling house or usual place of abode with some person of suitable age and discretion who resides there. Fed.R.Civ.P. 4(e). The D.C. Superior Court Rules of Civil Procedure allow for service upon individuals by first class, certified or registered mail. D.C. SCR-Civil 4(i)(2)(B). Actual notice does not substitute for technically proper service under Rule 4 and the Court is without jurisdiction to render a personal judgment against an individually-sued defendant until s/he has been properly served in accordance with the applicable federal or state statutory requirements. Ecclesiastical Order of the Ism of Am. Inc. v. Chasin, 845 F.2d 113, 116 (6th Cir.1988); Sieg v. Karnes, 693 F.2d 803, 807 (8th Cir.1982). . Because this Opinion resolves Mr. Epps’s claims against the Federal Defendants, Mr. Epps’s Motion for Supplemental Law Library Time at the D.C. Jail [Dkt. #17] for the purposes of responding to the" }, { "docid": "20321076", "title": "", "text": "he was being sued as an individual. The court treated the breach of contract and denial of due process claims (counts 1 and 2) against him as Bivens claims. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Dr. Simpkins does not contest this view of counts 1 and 2 and we shall assume it to be correct. A Bivens suit is an action against a federal officer seeking damages for violations of the plaintiff’s constitutional rights. These suits are, the court said, actions against federal officers in their individual capacity, not their official capacity. Relying on Pollack v. Meese, 737 F.Supp. 663 (D.D.C.1990), the court therefore held that Rule 4(e) controlled and that personal service was necessary. Accord Navy, Marshall & Gordon v. U.S. Int’l Development-Cooperation Agency, 557 F.Supp. 484, 489 (D.D.C.1983); Deutsch v. U.S. Dep’t of Justice, 881 F.Supp. 49, 52 (D.D.C.1995). Whether this is a correct view of Rule 4 is a question this court has never specifically addressed. Several statements in our opinion in Light v. Wolf, 816 F.2d 746 (D.C.Cir.1987), could suggest that in a Bivens suit, the defendant officer should not be treated as an individual and that service must be on the officer and the United States pursuant to what is now Rule 4(e)(2). We said, for instance, that “there must be some connection between the lawsuit and the federal government before [Rule 4(e)(2) ] service is required,” id. at 748, a condition that always will be met in Bivens eases. If there is no such connection, if the officer was not acting under color of law, how could he violate the Constitution? We also mentioned “practical considerations,” such as providing government counsel to these defendants early in the lawsuit. Service on the United States facilitates this objective since the summons and complaint must be sent to the United States attorney in the district and to the Attorney General. This “practical consideration” might encompass Bivens defendants, who are often represented by Justice Department attorneys. See 28 C.F.R. § 50.15(a). There" }, { "docid": "2274388", "title": "", "text": "does not contest the assertion that he failed to present any tort claim to the appropriate agency, within the two-year period provided by 28 U.S.C. § 2401(B). In effect, therefore, he concedes that dismissal of his tort claims is proper, insofar as they are brought under the Federal Tort Claims Act. See, e.g., Industrial Constructors Corp. v. United States Bureau of Reclamation, 15 F.3d 963, 967-68 (10th Cir.1994) (under FTCA, filing administrative claim with appropriate federal agency is a prerequisite to bringing a civil action against United States for damages for negligence or wrongful act of any United States employee). In fact, in his brief in opposition to the motion to dismiss, Plaintiff specifically stated his claims are not brought under the Tort Claims Act, but instead are claims for constitutional torts. Theréfore, due to Plaintiffs failure to exhaust his administrative remedies as well as his specific disavowal of the claims as tort claims, his tort claims will be dismissed. Bivens Claims — Personal Service: The only possible claim remaining to Plaintiff following the above dismissal are Bivens claims against the individual IRS-employee Defendants, for constitutional torts. Since such claims are brought against government employees in their individual capacity, rather than their official capacity, personal service upon the employees is required pursuant to Rule 4(e) of the Federal\" Rules of Civil Procedure. See Simpkins v. District of Columbia Government, 108 F.3d 366 (D.C.Cir.1997); Despain v. Salt Lake Area Metro Gang Unit, 13 F.3d 1436 (10th Cir.1994) (affirming dismissal of suit alleging violation of constitutional rights, due to failure to timely serve individual defendants). If the required personal service has not been obtained, this Court has no jurisdiction over the individual Defendants and may not proceed to a consideration of the merits. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999). Individual Defendants argue they were never personally served with process in this case, and have submitted affidavits to that effect. In response, Plaintiff argues that Defendants’ counsel was served by mail, and that service was otherwise proper under New Mexico law." }, { "docid": "23021342", "title": "", "text": "leaving them with Dan Flynn, Labor Relations, Authorized Agent at the Medical Center. Ap-pellees argue that while the defendants thus were properly served in their official capacity, appellant did not comply with Federal Rule of Civil Procedure 4(d)(1), which requires personal service of individuals; and thus defendants were not properly served in their individual capacities. Federal Rule of Civil Procedure 4(d)(1) provides that service will be made Upon an individual other than an infant or an incompetent person, by delivering a copy of the summons and of the complaint to him personally or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process. We require “substantial compliance with Rule 4.” Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir.1982). Rule 4 has generally been construed to mean that service at a defendant’s place of employment is insufficient. Smith v. Western Offshore, Inc., 590 F.Supp. 670, 674 (E.D.La.1984); Guyette v. Stauffer Chem. Co., 518 F.Supp. 521, 527 (D.N.J.1981); C. Wright & A. Miller, Federal Practice and Procedure § 1096 (1969). More specifically, where money damages are sought through a Bivens claim, personal service, and not service at the place of employment, is necessary to obtain jurisdiction over a defendant in his capacity as an individual. Micklus v. Carlson, 632 F.2d 227, 240-41 (3d Cir.1980). Thus, we agree with appellees that while serving the defendants at the Medical Center was sufficient to establish jurisdiction over them in their official capacity, it did not suffice to establish jurisdiction over them as individuals. Because a Bivens action can be maintained against a defendant in his or her individual capacity only, and not in his or her official capacity, the failure to perfect individual service is fatal to appellant’s Bivens action against the named defendants. Holloman v. Watt, 708 F.2d 1399, 1402 (9th Cir.1983) (citing cases), cert. denied, 466 U.S. 958, 104 S.Ct. 2168, 80" }, { "docid": "7288774", "title": "", "text": "25, 27, 32, ECF No. 5. The Plaintiff also asserts that the three defendants seized his legal documents and opened his legal mail. See id. ¶ 35. The Plaintiff, however, cannot claim relief against individual defendants under FOIA or the Privacy Act. The Plaintiffs suit against the three defendants is impermissible under FOIA and the Privacy Act. 5 U.S.C. § 552(a)(4)(B); see, e.g., Martinez v. Bureau of Prisons, 444 F.3d 620, 624 (D.C.Cir.2006); Cunningham v. U.S. Dep’t of Justice, 2013 WL 4446795 (D.D.C. Aug. 21, 2013). The Plaintiff would not be entitled to relief under FOIA or the Privacy Act because the statutes only authorize a cause of action against agencies, not individuals. See Martinez, 444 F.3d at 624. To the extent that the Plaintiff seeks to pursue monetary damages against these individual defendants for all alleged constitutional torts pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, he has not demonstrated that this Court maintains personal jurisdiction over these defendants who appear to be located in Colorado. See 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); Ibrahim v. District of Columbia, 357 F.Supp.2d 187, 193 (D.D.C.2004) (holding that this Court lacks personal jurisdiction over suits against out-of-state defendants in their personal capacity); 2d Am. Compl. ¶¶ 25-35. Additionally, the docket does not reflect that service has been effected on these individual defendants in their personal capacity. See Pollack v. Meese, 737 F.Supp. 663, 666 (D.D.C.1990) (stating that a failure to effect personal service “is fatal to a Bivens action”); 2d Am. Compl. ¶¶ 25-35. Accordingly, if these claims were to be pursued in a new amended complaint, they would be subject to dismissal. 5. Plaintiffs Claims Under the Privacy Act The Plaintiff fails to state claims under the Privacy Act. A plaintiff is entitled to civil remedies against a federal agency when a plaintiff can demonstrate that the federal agency refuses or fails to comply with the plaintiffs requests under any provision of the Privacy Act. 5 U.S.C. § 552a(g)(l). In order to obtain monetary damages, a plaintiff must also demonstrate that the" }, { "docid": "20409524", "title": "", "text": "935 (D.C.Cir.2008) (“the discretionary function immunizes even government abuses of discretion”). As in Gustave-Schmidt v. Chao, 226 F.Supp.2d at 199, plaintiffs allegations about the deficiencies of the investigation are inextricably intertwined with the outcome of the investigation and the discretionary decision to propose his removal. Plaintiffs claim against the United States for intentional infliction of emotional distress therefore is barred by the discretionary function exception to the FTCA. The Court will dismiss Count One for lack of subject matter jurisdiction. C. Plaintiffs Bivens Claim Plaintiff seeks money damages for a constitutional tort — deprivation of procedural due process rights — from Mr. Pistole in his individual capacity. See Compl. ¶ 36. See Bivens v. Six Unknown Named Agents, 403 U.S. at 389, 91 S.Ct. 1999. See also Correctional Services Corp. v. Malesko, 534 U.S. 61, 66-68, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001); Scinto v. Fed. Bureau of Prisons, 608 F.Supp.2d 4, 8 (D.D.C.2009). Defendants move to dismiss on the grounds that plaintiff never properly served Mr. Pistole and for failure to state a Bivens claim. Rule 4(i)(3) of the Federal Rules of Civil Procedure provides that to sue an officer or employee of the United States in his or her individual capacity in connection with duties performed on the behalf of the United States, a plaintiff must serve both the United States and the officer or employee as an individual. Fed.R.Civ.P. 4(i)(3). Rule 4(e) requires that an individual within a judicial district of the United States may be served by “(A) delivering a copy of the summons and the complaint to the individual personally; (B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.” Fed. R.CrvP. 4(e). Plaintiff served Mr. Pistole by sending a copy of the summons and complaint by certified mail to the FBI headquarters in the District of Columbia where someone other than Mr. Pistole signed for it. See Affidavit" } ]

[ { "docid": "7633098", "title": "", "text": "NARMP v. Weinberger, supra at 843, 846 with NCCMHC, supra, at 240 of 178 U.S.App.D.C., at 1006 of 546 F.2d. . We note with concern the apparent conflicts of interest which arise when a class action attorney prosecutes his own fee application against the class members and at the same time serves as counsel on appeal to a named representative of the class (NARMP) which purportedly is attempting to protect the interests of the individual RMP class members. . NCCMHC, supra at 239-240 of 178 U.S.App. D.C., at 1005-1006 of 546 F.2d & n. 5. . Wagshal Brief at 5 n.7; NARMP Reply Brief at 3 n.5. . Note 20 supra. . This is especially important because of the broadened res judicata effect under the 1966 amendments to Fed.R.Civ.P. 23. See Gonzales v. Cassidy, 474 F.2d 67, 74-75 (5th Cir. 1973); Eisen v. Carlisle & Jacqueiin, 391 F.2d 555, 562 (2d Cir. 1968) (Eisen II); Dolgow v. Anderson, 43 F.R.D. 472, 493 (E.D.N.Y.1968), rev’d on other grounds, 438 F.2d 825 (2d Cir. 1971); 7 C. Wright and A. Miller, Federal Practice and Procedure § 1765, at 616-17 (1972) (hereinafter Wright and Miller); 3B J. Moore, Federal Practice fi 23.07[1], at 23-357 & n.32 (2d ed. 1975). . See also Wright and Miller, § 1768, at 638. . NCCMHC, supra, at 242 of 178 U.S.App.D.C., at 1008 of 546 F.2d. . See, e.g., Developments in the Law — Class Actions, 89 Harv.L.Rev. 1321, 1402-16, 1471-75 (1976); Comment, The Importance of Being Adequate: Due Process Requirements in Class Actions Under Federal Rule 23, 123 U.Pa.L. Rev. 1217 (1975); Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). . “It is familiar doctrine of the federal courts that members of a class not present as parties to the litigation may be bound by the judgment where they are in fact adequately represented by parties who are present . . Hansberry v. Lee, 311 U.S. 32, 42-43, 61 S.Ct. 115, 118, 85 L.Ed. 22 (1940). . See 89 Harv.L.Rev., supra at 1402-03; 123 U.Pa.L.Rev., supra at 1218-19. ." } ]

[ { "docid": "5511837", "title": "", "text": "A judgment in a class action will generally bind the members of the class. However, the law is clear that a class member cannot be bound to a judgment in which he was not adequately represented by the class representative. Hansberry v. Lee, 311 U.S. 32, 40, 44, 61 S.Ct. 115, 85 L.Ed. 22 (1940); Gonzales v. Cassidy, 474 F.2d 67, 74 (5th Cir. 1973). See Kemp v. The Birmingham News, supra. This exception is grounded in due process. Id. In determining the adequacy of representation, it should be considered whether any antagonism exists between the interests of the plaintiffs and those of the remainder of the class. See Hansberry v. Lee, supra; Cross v. National Trust Life Ins. Co., 553 F.2d 1026, 1031 (6th Cir. 1977). Fowler claims that because the retroactive priority awarded the class representative Cook in the prior litigation placed Cook higher on the priority list than Fowler, therefore, Fowler’s interests conflicted with those of the named plaintiff. Under the circumstances of this case, however, the antagonistic interests were not significant. The claims of the class representative were “typical” of Fowler’s claims concerning the affirmative relief granted and Fowler was not eligible for the back pay or retroactive priority relief granted to Cook. Any antagonistic interests involved were ameliorated by the provision for notice in the decree, with an opportunity to opt out of the class. Cf. East Texas Motor Freight System, Inc. v. Rodriquez, 431 U.S. 395, 405, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977); Bailey v. Ryan Stevedoring Co., 528 F.2d 551, 553 (5th Cir. 1976). Inadequate notice by posting the proposed decree on the company’s bulletin board forms the final basis for Fowler’s lawsuit. In a Rule 23(b)(2) class action, mechanics of the notice process are left to the discretion of the district court subject only to the broad “reasonableness” standards imposed by due process. See Mandujano v. Basic Vegetable Products, Inc., 541 F.2d 832 (9th Cir. 1976); F.R.Civ.P. 23(e) (“proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs”). Fowler cites and" }, { "docid": "14953269", "title": "", "text": "class’s interests, and whether there is adequate financial support from the repre sentative for the litigation. See 3B Moore’s Federal Practice ¶ 23.08[1], at 23-203, ¶ 23.-07[1.-1], at 23-218 (1979). The Court must “carefully scrutinize” the adequacy of representation. Gonzales v. Cassidy, supra, 474 F.2d at 75 n. 15, quoting Eisen v. Carlisle & Jacquelin, supra, 391 F.2d at 562; National Ass’n of Regional Medical Programs, Inc. v. Mathews, 551 F.2d 340, 344-45 (D.C. Cir. 1976), cert. denied, 431 U.S. 954, 97 S.Ct. 2674, 53 L.Ed.2d 270 (1977). This weight that must be given to Rule 23(a)(4)’s requirement of adequate representation flows from the requirements of due process. See Hansberry v. Lee, 311 U.S. 32, 44 — 45, 61 S.Ct. 115, 119, 85 L.Ed. 22 (1940). As defendant has conceded, counsel for plaintiff are adequate and will be able to fairly represent the class. There is no antagonism between the interests of Missildine and the interest of other class members. Defendant argues that because Missildine never received a discount, and never entered into any other special pricing arrangement, his interest as a purchaser at straight wholesale list price was antagonistic to the interests of other class members who were different types of purchasers. Plaintiff, however, is asserting by his price fixing claim that the wholesale bakery companies illegally agreed to fix prices for each of the types of purchasers included in the proposed class. Plaintiff claims that each type of purchaser within the defined geographic area who bought at prices that were illegally fixed by the bakeries’ combination or conspiracy was injured by the conspiracy,' even though these purchasers bought through different pricing mechanisms. If, as plaintiff contends, the prices of bakery goods paid by each type of purchaser were illegally fixed, there would be no antagonism between the interests of Missildine and the class members. A naked allegation of antagonism cannot defeat class certification; there must be an actual showing of a real probability of a potential conflict which goes to the subject matter of the suit. Green v. Wolf Corp., supra, 406 F.2d at 299; Robertson v. National" }, { "docid": "8747647", "title": "", "text": "prove personal monetary loss until it is established that minority employees as a class have been discriminated against. Baxter v. Savannah Sugar Refining Corp., 495 F.2d 437, 443-44 (5th Cir.), cert. denied, 419 U.S. 1033, 95 S.Ct. 515, 42 L.Ed.2d 308 (1974). 2. CLAIMS OR DEFENSES TYPICAL OF THE CLASS Rule 23(a)(3) requires the plaintiffs to show that their claims are typical of those of the class. This requirement is satisfied by a showing that all members of the class “will be helped if” the class representative establishes his or her claim. Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir. 1968). The fact patterns underlying-each class member’s claim can vary provided that the members of the class have suffered the same or similar grievances. Taylor v. Safeway Stores, Inc., 524 F.2d 263, 270 (10th Cir. 1975). The defendants again raise factual differences among the various plaintiffs’ claims and argue that these differences preclude a finding of typicality. What this argument overlooks, however, is that discrimination in promotion can be accomplished in a wide variety of ways. Viewed from a broader perspective, the individual claims all allege discrimination in promotion. All members of the class have undergone the same type of discrimination and will benefit by the class representatives proving their claims. I therefore conclude that the plaintiffs’ claims are typical of those of the class. 3. FAIR AND ADEQUATE PROTECTION OF THE INTERESTS OF THE CLASS Adequacy of representation has traditionally been considered the most crucial requirement because any judgment entered in the case will bind absent class members. Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22 (1940). The requirement has two ingredients: [A]n essential concomitant of adequate representation is that the party’s attorney be qualified, experienced and generally able to conduct the proposed litigation. Additionally, it is necessary to eliminate so far as possible the likelihood that the litigants are involved in a collusive suit or that plaintiff has interests antagonistic to those of the remainder of the class. Eisen v. Carlisle & Jacquelin, supra at 562. The qualifications of the plaintiffs’" }, { "docid": "22647735", "title": "", "text": "\"different Interests. Eisen v. Carlisle & Jacquelin, 41 F.R.D. 147, 151 (S.D.N.Y.1966). Traditionally, courts have expressed particular concern for the adequacy, of representation in a class suit because the judgment conclusively determines the rights of absent class members. See Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22 (1940). Of course, understandably, the standards for representation under the old spurious class action were not as rigorously enforced, due to the minimal res judicata effects given to the judgments in these suits. See Oppenheimer v. F. J. Young & Co., 144 F.2d 387 (2d Cir. 1944). However, as a result of the sweeping changes in Rule 23, a court must now carefully scrutinize the adequacy of representation in all class actions. What are the ingredients that enable : one to be termed “an adequate representative of the class? ” To be sure, an. essential concomitant of adequate representation is that the party’s attorney be qualified, experienced and generally able to conduct the proposed litigation. Additionally, it is necessary to eliminate so far as possible the likelihood that the litigants are involved in a collusive suit or that' plaintiff has interests antagonistic to those of the remainder of the class. See Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22 (1940). Courts. on occasion, have also required that the interest of the representative party be coextensive with the interest of the entire class, but this amounts to little more than an alternative way of stating that the plaintiff’s claim must be typical of those of the entire class, an element we have already discussed. See Richland v. Cheatham, 272 F.Supp. 148 (S.D.N.Y. 1967). However, we believe that reliance on quantitative elements to determine adequacy of representation, as was done by the District Court, is unwarranted. Language to the effect that a small number of claimants cannot adequately represent an entire class has frequently been cited, see, e. g., Pelelas v. Caterpillar Tractor Co., 113 F.2d 629 (7th Cir.), cert. denied 311 U.S. 700, 61 S.Ct. 138, 85 L.Ed. 454 (1940), but. we fail to understand the" }, { "docid": "18381782", "title": "", "text": "The justification for permitting it is that considerations of efficiency and economy and good practice permit issuing an order or rendering a judgment that binds everyone in a defined group who was properly represented before the court and therefore has had a day in court vicariously. It is Rule 23(a)(4) that ensures the quality of that representation and the integrity of the system. Unless there has been fair and adequate representation, due process has not been satisfied and any attempt at binding the absentee is improper. Id. See Hansberry v. Lee, 311 U.S. 32, 44-46, 61 S.Ct. 115, 119-20, 85 L.Ed. 22 (1940) (discussing due process under Rule 23(a)(4)). Courts traditionally hold that to satisfy Rule 23(a)(4) the plaintiff must meet two tests. First, the plaintiff’s attorney must be qualified, experienced, and generally able to conduct the proposed litigation. Gonzales v. Cassidy, 474 F.2d 67, 73 n. 10 (5th Cir.1973); Schatzman v. Talley, 91 F.R.D. 270, 273 (N.D.Ga.1981). Based on the plaintiffs’ attorneys’ performance in these cases thus far, as seen through the discovery, briefs, and motions, and the hearing before the court, the court has no reason to question the competency of the plaintiffs’ attorneys. They have demonstrated a clear understanding of the issues in these cases and the competence and abil ity to conduct sophisticated securities litigation. The second requirement under Rule 23(a)(4) is that the plaintiffs must not have interests antagonistic to those of the class. Gonzales, 474 F.2d at 73 n. 10; Schatzman, 91 F.R.D. at 373. Courts interpreting this prerequisite have held that “the primary criterion is the forthrightness and the vigor with which the representative party can be expected to assert and defend the interests of the members of the class.” See Sckatzman, 91 F.R.D. at 273. The named plaintiffs have failed to impress the court that they will vigorously prosecute these class actions. The representatives are not sufficiently interested in the outcome of these actions to protect adequately the rights of the potential class members. The plaintiffs’ failure in this respect is fatal to their motions for class certification. The court notes that" }, { "docid": "14688206", "title": "", "text": "requirement that the named party’s claims be “typical” of the class, Rule 23(a)(3), Fed.R. Civ.P., does not mean that all claims be identical. As was stated in the context of a racial discrimination employment case, Rather, a named plaintiff who has allegedly suffered racial discrimination may bring an “across the board” class action to represent all persons who have suffered from the same discriminatory policy whether or not all have experienced discrimination in the same way. Phillips v. Joint Legislative Committee, etc., supra, at 1024. In addition, the Supreme Court has held that “typicality” is met when a “class representative [is]‘part of the class and ‘possesses] the same interest and suffer[s] the same injury’ as the class members.” East Texas Motor Freight v. Rodriguez, 431 U.S. 395, 403, 97 S.Ct. 1891, 1896, 52 L.Ed.2d 453 (1976). Plaintiff’s claim is typical of the class of inmates denied access to counsel at the jail. The defendant’s policy allegedly applied “across the board” to all under his supervision. Denial of access to plaintiff was not grounded in some reason atypical from the rest of the class. 4. Adequate representation Two factors are critical in determining whether an individual is an adequate representative: (1) [T]he representative must have common interests with the unnamed members of the class; and (2) it must appear that the representative will vigorously prosecute the interests of the class through qualified counsel. Gonzales v. Cassidy, 474 F.2d 67, 72 (5th Cir. 1973). Accord Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562-63 (2nd Cir. 1968), rev'd on other grds., 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). The plaintiff’s interest is in no way antagonistic to the interests of other potential class members. Moreover, the named plaintiff is represented by a team of attorneys associated with the Georgia Legal Services Program, Inc., a statewide legal services program with experience in conducting class litigation, especially in the civil rights field. It is thus clear that plaintiff has met his burden under Rule 23(a). B. Under Rule 23(b)(2), class certification is proper if the requirements of 23(a) are met and" }, { "docid": "10905905", "title": "", "text": "In addition, there are questions of law or fact common to all members of the proposed class. Rule 23(a)(2). The class, as defined by plaintiffs, includes all those who received, during a one-year period, a standard-form promissory note substantially similar to the one received by plaintiffs, and, therefore, there is a- common legal question as to whether defendant’s standard-form promissory note violates the disclosure requirements of the TILA and Regulation Z. Also, the claims or defenses of the representative parties are typical of the claims or defenses of the class. Rule 23(a)(3). In their Complaint, the named plaintiffs have alleged ten specific disclosure violations committed by defendant, and of those alleged violations, eight were contained in the pre-printed portions of the defendant’s form. Since all class members would be able to assert a claim, based on those same eight alleged violations, the named plaintiffs’ claim can properly be regarded as typical. Much of the dispute between the parties over the certification of Count I centers upon the requirement of Rule 23(a)(4) — that the representative parties will fairly and adequately protect the interests of the class. This requirement is of critical importance in all class actions. Because of due process considerations, an absent class member will be bound by a judgment entered in an action only if his interests have been adequately represented. Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22 (1940); Dierks v. Thompson, 414 F.2d 453, 456 (1st Cir. 1969); 7 C. Wright & A. Miller, Federal Practice and Procedure § 1765, at 617-18 (1972). The necessary adequacy of representation depends upon the presence of two factors: (1) the representative parties must not have conflicting interests with the unnamed class members, and (2) the attorney representing the class must be qualified, experienced, and generally able to conduct the litigation. Sosna v. Iowa, 419 U.S. 393, 403, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975); Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239, 247 (3d Cir.), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975); Eisen v. Carlisle & Jacquelin, 391 F.2d" }, { "docid": "14953268", "title": "", "text": "adequacy of his counsel must be established. Gonzales v. Cassidy, supra, 474 F.2d at 72 & n. 10; Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239, 247 (3d Cir.), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975); Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2nd Cir. 1968). The test of adequate representation is whether the representative has a sufficient interest in, and nexus with, the class to insure vigorous prosecution of the action. Roper v. Consurve, Inc., 578 F.2d 1106, 1112 (5th Cir. 1978); appeal pending, 440 U.S. 945, 99 S.Ct. 1421, 59 L.Ed.2d 633 (1979); Huff v. N. D. Cass Co. of Alabama, 485 F.2d 710, 714 (5th Cir. 1973); Gonzales v. Cassidy, supra, 474 F.2d at 72. In determining whether a party would be an adequate class representative, courts have also inquired whether the representative’s interests are coextensive with those of the class, i. e., whether there is a nexus between the representative’s interests and the class’s interests, whether the representative’s interests are antagonistic to the class’s interests, and whether there is adequate financial support from the repre sentative for the litigation. See 3B Moore’s Federal Practice ¶ 23.08[1], at 23-203, ¶ 23.-07[1.-1], at 23-218 (1979). The Court must “carefully scrutinize” the adequacy of representation. Gonzales v. Cassidy, supra, 474 F.2d at 75 n. 15, quoting Eisen v. Carlisle & Jacquelin, supra, 391 F.2d at 562; National Ass’n of Regional Medical Programs, Inc. v. Mathews, 551 F.2d 340, 344-45 (D.C. Cir. 1976), cert. denied, 431 U.S. 954, 97 S.Ct. 2674, 53 L.Ed.2d 270 (1977). This weight that must be given to Rule 23(a)(4)’s requirement of adequate representation flows from the requirements of due process. See Hansberry v. Lee, 311 U.S. 32, 44 — 45, 61 S.Ct. 115, 119, 85 L.Ed. 22 (1940). As defendant has conceded, counsel for plaintiff are adequate and will be able to fairly represent the class. There is no antagonism between the interests of Missildine and the interest of other class members. Defendant argues that because Missildine never received a discount, and never entered into any other" }, { "docid": "14916610", "title": "", "text": "decided by the jury on its merits, with the same consequences for both the proposed representative plaintiffs and the absent class members. There is sufficient typicality to induce the proposed plaintiffs to adequately represent the interests of absent class members in this litigation. No basis for subclassing has been shown as to plaintiffs or as to defendants. The conduct on both sides cannot, at this stage of the litigation, be said to differ among the parties on any appropriate method of classification. A Adequacy of Representation a. Law Rule 23(a)(4) requires that the representative parties will fairly and adequately protect the interests of the prospective class. Fed.R.Civ.P. 23(a)(4). The Advisory Committee for the 1966 Amendments and the courts have expressed particular concern regarding adequacy of representation because any judgment conclusively determines the rights of absent class members. See, e.g., Eisen v. Carlisle and Jacquelin, 391 F.2d 555, 562 (2d Cir.1968) (citing Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22 (1940), for the premise that fundamental due process prevents a decision from binding class members if their interests were not adequately represented). The adequacy-of-representation requirement tends to “merge” with the commonality and typicality requirements; commonality and typicality of the claims ensure that as class representatives advance their own interests, they will also advance the interests of the absent class members, serving as adequate representation. Falcon, 457 U.S. at 158 n. 13, 102 S.Ct. 2364. See also McNeill, 719 F.Supp. at 252 (citing Dura-Bilt Corp., 89 F.R.D. at 93). “The question of whether the named plaintiffs can fairly and adequately represent the class is one ‘committed to the sound discretion of the district court.’ ” County of Suffolk v. Long Island Lighting Co., 710 F.Supp. 1407, 1413 (E.D.N.Y. 1989), aff'd, 907 F.2d 1295 (1990) (quoting Malchman v. Davis, 761 F.2d 893, 899 (2d Cir.1985)). To determine that representation is adequate, a plaintiff must meet two basic standards: class representatives and members must not have interests antagonistic to one another; and counsel for the prospective class must be qualified, experienced, and generally able to conduct the litigation. See In" }, { "docid": "12842494", "title": "", "text": "members who purchased their partnership interests before or after her. The Court disagrees. Plaintiff alleges a course of conduct involving a series of omissions and misrepresentations occurring throughout the class period. Plaintiff will adequately protect the interests of all class members since plaintiff must show that Advest presented a uniformly distorted picture of Petro-Lewis’ financial reliability throughout the class period. See Weisberg v. APL Corp., 76 F.R.D. 233, 239-41 (E.D.N.Y.1977); In re Baldwin-United, supra; In re Resource Exploration, supra. If need be, the Court can later subdivide the class or order separate hearings to determine issues of reliance or damages. D. ADEQUACY The Court’s determination of whether the named plaintiff will fairly and adequately protect the interests of the class, Rule 23(a)(4), is designed to ensure that the named plaintiff does not have interests potentially antagonistic to the interests of absent class members. Ross v. A.H. Robins Company, Inc., 100 F.R.D. 5, 7 (S.D.N.Y.1982). See Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22 (1940); Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir.1968), vacated and remanded on other grounds, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974); Du Pont v. Perot, 59 F.R.D. 404, 411 (S.D.N.Y.1973). The Court finds that plaintiff Helen Shankroff is an improper representative because the Advest broker from whom she purchased her Petro-Lewis partnership interest is her husband’s cousin. While the Court recognizes that class members need not demonstrate for class certification their reliance on written representations rather than the oral representations of their brokers, plaintiff's familial relationship with her broker presents an issue of reliance quite atypical of the remainder of the class. Furthermore, since it is conceivable that plaintiff’s cousin, or any other Advest broker who participated in the sale of partnership interests, could become a defendant in the future, the Court notes the potential for a conflict of interests and declines to certify Helen Shankroff as named representative for the class. E. SUPERIORITY The Court finds that Rule 23(b)(3) is satisfied in that questions of law and fact common to class members predominate over individualized" }, { "docid": "22793157", "title": "", "text": "E. I. dePont deNemours and Co., supra at 130; Reed v. Arlington Hotel Co., 476 F.2d 721, 723 (8th Cir. 1974); Carr v. Conoco Plastics, Inc., supra at 63; Johnson v. Ga. Hwy. Express, supra at 1124. The other prerequisites of 23(a) are that the claims of the representative are typical of those of the class and that he will fairly and adequately protect the interests of the class. In large measure we have already dealt with these questions in our discussion of standing, however a few additional observations would appear appropriate. There are two criteria for de termining whether the representation of the class will be adequate: 1) The representative must have common interests with unnamed members of the class, and 2) it must appear that the representatives will vigorously prosecute the interests of the class through qualified counsel. Gonzales v. Cassidy, 474 F.2d 67, 73 (6th Cir. 1973). See generally Moore ¶ 23.07[2] at 23-371. Appellant was a member of the class at the time the suit was filed and to that extent his claims are typical. Class membership is also relevant to the question of common interest although it is not dispositive. Appellant’s interests have not been shown to be antagonistic to those of the class. See generally Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22 (1940). It would appear that Appellant’s interests are coextensive with those of the class on all issues which relate to the class. The second criterion is also met. This case comes to us after trial on the merits where Appellant prevailed on the class issues. Appellant has demonstrated to our satisfaction that he may adequately represent the interests of the class. Even though this Court finds that the prerequisites of 23(a) are satisfied, our inquiry does not end because we must next determine whether or not the action is maintainable as a class action under any of file subdivisions contained in Rule 23(b). In the vast majority of Title VII cases, courts have normally permitted the action to proceed under Rule 23(b)(2) or 23(b)(3) if the case" }, { "docid": "22073979", "title": "", "text": "holding that it was error for district court to presume that respondent’s claim was typical of other claims against petitioner). 4. Rule 23(a)(4) allows certification only if “the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a). This prerequisite is essential to due process, because a final judgment in a class action is binding on all class members. Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22 (1940); 1 Newberg, supra, § 3.21, at 3-125. See also Smith v. Babcock, 19 F.3d 257, 264 n. 13 (6th Cir. 1994)(“[n]o class should be certified where the interests of the members are antagonistic, because the preclusive effect of the verdict may deprive unnamed class members of their right to be heard”). In Senter, we articulated two criteria for determining adequacy of representation: “1) the representative must have common interests with unnamed members of the class, and 2) it must appear that the representatives will vigorously prosecute the interests of the class through qualified counsel.” Senter, 532 F.2d at 525 (citation omitted); Cross, 553 F.2d at 1031 (Rule 23(a)(4) tests “the experience and ability of counsel for the plaintiffs and whether there is any antagonism between the interests of the plaintiffs and other members of the class they seek to represent”). See also Falcon, 457 U.S. at 157 n. 13, 102 S.Ct. at 2370 n. 13 (“adequacy of representation requirement ... also raises concerns about the competency of class counsel and conflicts of interest”). The adequate representation requirement overlaps with the typicality requirement because in the absence of typical claims, the class representative has no incentives to pursue the claims of the other class members. Although the district judge considered the qualifications of plaintiff’s counsel, he made no finding on the first Senter criterion, and did not consider whether Vorhis or the other plaintiffs would “vigorously prosecute the interests of the class.” AMS raised a serious question as to Vorhis’ suitability to serve as a class representative given his history of psychological problems. See, e.g., Roundtree v. Cincinnati Bell, Inc., 90 F.R.D. 7, 10 (S.D.Ohio" }, { "docid": "10898908", "title": "", "text": "meriting the closest examination is that “the representative parties will fairly and adequately protect the interests of the class.” Rule 23(a)(4). The reason for its importance is its direct relevance to the question of due process. Since class members are bound by the result of a class action, it is crucial in the satisfaction of due process requirements that they receive adequate representation. See Hansberry v. Lee, 311 U.S. 32, 6 S.Ct. 115, 85 L.Ed. 22 (1940). In order to satisfy the requirement, the moving party must convince the Court not only that the proposed representatives do not have interests antagonistic to those of the proposed class members,. but also that counsel for the representatives be “qualified, experienced and generally able to conduct the proposed litigation.” Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir. 1968). The Court has a great deal of latitude and discretion in selecting class representatives whom it believes will provide the necessary protection out of those proposed by the moving party. The interests of the proposed representatives in this action do not appear to be antagonistic to those of class members. The only possible exception might with re gard to the State since private landowners may choose to cross claim against the State. However, that would occur at a later point and even then only if the plaintiffs prevail on the liability issues. The possibility of antagonistic interests prevents certification of a class only if the antagonism goes to the subject matter of the litigation, which is not the case here since private landowners and the State alike have an interest in presenting strong opposition on the liability issues. See Frost v. Weinberger; 375 F.Supp. 1312 (E.D.N.Y.1974), rev’d. on the merits 515 F.2d 57 (2d Cir. 1975), cert. denied, 424 U.S. 958, 96 S.Ct. 1435, 47 L.Ed.2d 364 (1976). The proposed representatives all have property interests to protect in this action, and there is absolutely no indication that they have any intention but to vigorously defend those interests against the plaintiffs’ claims. Therefore, the Court is assured that the class members will receive" }, { "docid": "14953267", "title": "", "text": "the claims of the class. See In re Sugar Industry Antitrust Litigation, supra, 73 F.R.D. at 336; Minnesota v. United States Steel Corp., supra, 44 F.R.D. at 567. Although various purchasers of bakery products, members of the proposed class, bought through different mechanisms, e. g., bidding, negotiation, and wholesale price lists, the essential claim of both Missildine and the class members is that the prices paid were established by combination or conspiracy. The mere fact that all of the methods through which the alleged conspiracy was effected were not used with respect to Missildine, or the fact that Missildine did not purchase from all defendants, does not determine that the claim of Missildine lacks typicality under Rule 23(a)(3). See Shelter Realty Corp. v. Allied Maintenance Corp., supra, 75 F.R.D. at 39. The Court finds that the claim of Missildine is typical of the claims of all class members. REPRESENTATIVENESS Rule 23(a)(4) requires a showing that the representative will fairly and adequately protect the interests of the class. Both the adequacy of the representative and the adequacy of his counsel must be established. Gonzales v. Cassidy, supra, 474 F.2d at 72 & n. 10; Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239, 247 (3d Cir.), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975); Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2nd Cir. 1968). The test of adequate representation is whether the representative has a sufficient interest in, and nexus with, the class to insure vigorous prosecution of the action. Roper v. Consurve, Inc., 578 F.2d 1106, 1112 (5th Cir. 1978); appeal pending, 440 U.S. 945, 99 S.Ct. 1421, 59 L.Ed.2d 633 (1979); Huff v. N. D. Cass Co. of Alabama, 485 F.2d 710, 714 (5th Cir. 1973); Gonzales v. Cassidy, supra, 474 F.2d at 72. In determining whether a party would be an adequate class representative, courts have also inquired whether the representative’s interests are coextensive with those of the class, i. e., whether there is a nexus between the representative’s interests and the class’s interests, whether the representative’s interests are antagonistic to the" }, { "docid": "19822265", "title": "", "text": "Bell Tel. & Tel. Co., 133 F.R.D. 54, 58 (S.D.Fla.1990). For claims on which certification is sought, it appears that the putative representatives’ claims are typical, if not identical, to causes of action that class members might assert against Deere were they to file their own suits. Rule 23’s representativeness element requires a showing that the representative will fairly and adequately protect the interests of the class. In the test for adequate representation, a court examines whether the representative has a sufficient interest in, and nexus with, the class to insure vigorous prosecution of the action. In re S.Cent.States Bakery Prods. Antitrust Litig., 86 F.R.D. 407, 417 (M.D.La.1980). In this inquiry, courts have also focused on whether the representative’s interests are coextensive with those of the class. Specifically, this query concerns whether there is a nexus between the representative’s and the class’s interests, whether the representative’s interests are antagonistic to those of the class and whether there is adequate financial support from the representative for the litigation. Id. This inquiry necessarily concentrates on the competence of class counsel. Ylla v. Delta Air Lines, Inc., No. 76-1503A, 1977 WL 87, at *2 (N.D.Ga. Sept. 23, 1977); In re S.Cent. States Bakery Prods. Antitrust Litig., 86 F.R.D. 407 at 417; see Gibb v. Delta Drilling Co., 104 F.R.D. 59, 75 (N.D.Tex.1984) (stating that one critical element of the adequacy criteria is that the representative parties, though their attorneys, vigorously, tenaciously and effectively prosecute the class claims). Special attention must be given to the issue of representativeness because that element’s requisites flow from the demands of due process. See Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22 (1940). Under these exacting standards, the Court finds that the putative class representative is capable of adequately representing the class, and the Court has no question regarding the adequacy or competence of class counsel. Rule 23(b) Satisfaction of Rule 23(a)’s prerequisites is only a first step in the class certification process. On satisfaction of those elements, the moving party must then satisfy the court that the class seeking certification fits one of" }, { "docid": "14688207", "title": "", "text": "reason atypical from the rest of the class. 4. Adequate representation Two factors are critical in determining whether an individual is an adequate representative: (1) [T]he representative must have common interests with the unnamed members of the class; and (2) it must appear that the representative will vigorously prosecute the interests of the class through qualified counsel. Gonzales v. Cassidy, 474 F.2d 67, 72 (5th Cir. 1973). Accord Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562-63 (2nd Cir. 1968), rev'd on other grds., 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). The plaintiff’s interest is in no way antagonistic to the interests of other potential class members. Moreover, the named plaintiff is represented by a team of attorneys associated with the Georgia Legal Services Program, Inc., a statewide legal services program with experience in conducting class litigation, especially in the civil rights field. It is thus clear that plaintiff has met his burden under Rule 23(a). B. Under Rule 23(b)(2), class certification is proper if the requirements of 23(a) are met and the “party opposing the class has acted or failed to act on grounds generally applicable to the class, thereby making appropriate final injunctive and declaratory relief with respect to the class as a whole.” The action or inaction of the defendant does not have to be effective or completed with reference to each member of the class, so long as it is based on grounds which have general application to the class. 3B Moore’s Federal Practice ¶ 23.40[2], at 23-290; Jones v. Diamond, supra. Moreover, Rule 23(b)(2) was intended primarily to facilitate civil rights class actions, where the class representatives typically sought broad injunctive or declaratory relief against discriminatory practices. Penson v. Terminal Transport Co. Inc., 634 F.2d 989, 993 (5th Cir. 1981). The plaintiff seeks only injunctive and declaratory relief, which would inure to the benefit of the entire class. In Eisen v. Carlisle & Jacquelin, supra, 417 U.S. at 177, 94 S.Ct. at 2152, the Supreme Court held that a court has no power under Rule 23 “to conduct a preliminary inquiry into" }, { "docid": "5511836", "title": "", "text": "of which he was not and is not a member. This is true of the subclass created for back-pay purposes but Fowler was still eligible for the affirmative relief granted. Fowler also argues that, because he was not considered by the class representatives or by himself to be a member of the class, he is not bound by the res judicata effect of the consent decree. What the class representatives may claim three years after the entry of the decree is not relevant to the definition of the class the court fashioned, however. Finally, to meet the res judicata defense, Fowler contends that, even if he is to be considered a member of the class in Cook, the representation of his interests in that action was so inadequate that res judicata should not be a bar to the present action. He claims that some of the affirmative relief accorded members of the class conflicted with his interest and therefore violated due process. Furthermore, he alleges that he did not receive adequate notice of the decree. A judgment in a class action will generally bind the members of the class. However, the law is clear that a class member cannot be bound to a judgment in which he was not adequately represented by the class representative. Hansberry v. Lee, 311 U.S. 32, 40, 44, 61 S.Ct. 115, 85 L.Ed. 22 (1940); Gonzales v. Cassidy, 474 F.2d 67, 74 (5th Cir. 1973). See Kemp v. The Birmingham News, supra. This exception is grounded in due process. Id. In determining the adequacy of representation, it should be considered whether any antagonism exists between the interests of the plaintiffs and those of the remainder of the class. See Hansberry v. Lee, supra; Cross v. National Trust Life Ins. Co., 553 F.2d 1026, 1031 (6th Cir. 1977). Fowler claims that because the retroactive priority awarded the class representative Cook in the prior litigation placed Cook higher on the priority list than Fowler, therefore, Fowler’s interests conflicted with those of the named plaintiff. Under the circumstances of this case, however, the antagonistic interests were not significant." }, { "docid": "22951752", "title": "", "text": "class representatives under Rule 23(a)(4). Prior to certification of a class, a court must find that the named representatives of the class will fairly and adequately protect the interests of the class. “Basic consideration of fairness require that a court undertake a stringent and continuing examination of the adequacy of representation by the named class representatives at all stages of the litigation where absent members will be bound by the court’s judgment.” National Association of Regional Medical Programs v. Mathews, 551 F.2d 340 (D.C.Cir.1976). Strict oversight is necessitated since due process requires that absent class members be adequately represented in order to be bound by a court’s judgment. National Association of Regional Medical Programs, 551 F.2d at 344-5; Hansberry v. Lee, 311 U.S. 32, 42-43, 61 S.Ct. 115, 85 L.Ed. 22 (1940); Gonzales v. Cassidy, 474 F.2d 67 (5th Cir. 1973); Wright & Miller, Federal Practice and Procedure, § 1765, p. 617. “Adequate representation depends on two factors: (a) the plaintiff’s attorney must be qualified, experienced, and generally able to conduct the proposed litigation, and (b) the plaintiff must not have interests antagonistic to those of the class.” Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239, 247 (3rd Cir. 1975), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679; Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir. 1968); Cross v. National Trust Life Insurance Co., 553 F.2d 1026, 1031 (6th Cir. 1977). Whether a party would adequately protect the interests of the class is a question of fact depending on the circumstances of each case. Schy v. Susquehanna Corporation, 419 F.2d 1112, 1116 (7th Cir. 1970), cert. denied, 400 U.S. 826, 91 S.Ct. 51, 27 L.Ed.2d 55; Wright & Miller, Federal Practice and Procedure, § 1765, p. 622. A district judge’s determination of the adequacy of representation is a matter of discretion and will not be disturbed on appeal unless abuse of discretion is shown. Morris v. McCaddin, 553 F.2d 866, 870 (4th Cir. 1977); Brick v. CPC Intern., Inc., 547 F.2d 185 (2d Cir. 1976); Wright & Miller, Federal Practice and Procedure, §" }, { "docid": "5992424", "title": "", "text": "L.Ed.2d 740 (1982). Finally, plaintiffs must prove that they “fairly and adequately” represent the proposed class. This requirement incorporates two principal criteria: “ ‘1) the named representative^] must not have antagonistic or conflicting interests with the unnamed members of the class, and 2) the representatives must appear able to vigorously prosecute the interests of the class through qualified counsel.’ ” National Association for Mental Health, Inc. v. Califano, 717 F.2d 1451, 1458 (D.C.Cir.1983), cert. denied sub nom. Wagshal v. Crozer-Chester Medical Center, 469 U.S. 817, 105 S.Ct. 85, 83 L.Ed.2d 32 (1984) (quoting National Association of Regional Medical Programs, Inc. v. Mathews, 551 F.2d 340, 345 (D.C.Cir.1976), cert. denied, 431 U.S. 954, 97 S.Ct. 2674, 53 L.Ed.2d 270 (1977); Arnett v. American National Red Cross, 78 F.R.D. 73, 75 (D.D.C.1978). Defendants and defendant-intervenors argue that there may be members of the White Earth Band who are satisfied with the remedies available under the White Earth Act and would not challenge the Act’s constitutionality. As such, they maintain, plaintiffs do not meet the “adequacy of representation” test. Basic considerations of fairness require the Court to undertake a searching inquiry into the adequacy of representation, for any representation that falls short of the standard may well infringe the due process rights of absent class members. See, e.g., Hansberry v. Lee, 311 U.S. 32, 45, 61 S.Ct. 115, 85 L.Ed. 22 (1940); National Association for Mental Health, Inc. v. Califano, 717 F.2d at 1457. This inquiry must be especially careful in a motion for class certification under Fed.R.Civ.P. 23(b)(2), as members cannot “opt out” of a class certified under that provision of the rule. See Federal Practice and Procedure, § 1793. The Court is satisfied that class certification is proper in this case. While actual antagonism between class members, or a “strong likelihood” of antagonism, would defeat class certification, see, e.g., Fink v. National Savings & Trust Co., 772 F.2d 951, 965 (D.C.Cir.1985) (Scalia, J., concurring in part and dissenting in part); Phillips v. Klassen, 502 F.2d 362, 366-67 (D.C.Cir.), cert. denied, 419 U.S. 996, 95 S.Ct. 309, 42 L.Ed.2d 269 (1974), incantations" }, { "docid": "4360141", "title": "", "text": "parties will fairly and adequately protect the interests of the class.” Fed. R. Civ.P. 23(a)(4). Since the absent members of the class will be conclusively bound by results obtained by the class representative and his attorneys, the representative party acts a fiduciary for the class. Scott v. University of Delaware, 601 F.2d 76 (3d Cir.1979), cert. denied, 444 U.S. 931, 100 S.Ct. 275, 62 L.Ed.2d 189 (1979); see also 7A Wright, Miller & Kane, Federal Practice & Procedure, Civil 2d, § 1765 (1992). As a result, adequate representation, in addition to being required by Rule 23, is constitutionally mandated by due process requirements. Scott, 601 F.2d at 85 (citing Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22 (1940)). In Wetzel v. Liberty Mutual Life Insurance Co., 508 F.2d 239 (3d Cir.), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975), the Third Circuit stated that adequate class representation under' Fed.R.Civ.P. 23(a)(4) depends on two factors: (1) the plaintiff’s attorney must be qualified, experienced, and generally able to conduct the proposed litigation; and (2) the plaintiff must not have any interests antagonistic to those of the class. Wetzel, 508 F.2d at 247. In this case, Malone never made any inquiry into whether Greenfield could adequately protect the interests of the class, nor whether Greenfield had any interests antagonistic to those of the class. In light of the seriousness of the allegation that Greenfield would fairly and adequately protect the interests of the class, the court finds that Malone’s failure to inquire into the truth of this allegation was unreason able under the circumstances and a violation of Rule 11. 2. The Strunk Complaint In paragraph 13 of the Strunk Complaint, Malone alleges that Strunk will “fairly and adequately protect the interests of the Class.” Given Malone’s failure to conduct any inquiry into the truth of this allegation with regard to Greenfield, it would not be unreasonable to conclude that Malone failed to conduct the same inquiry with regard to Strunk. Nevertheless, at this time, there is insufficient evidence in the record to make such" } ]

[ { "docid": "3956066", "title": "", "text": "the evidence that the money involved in the offense was illegally derived or that Sanders knew that it was illegally derived. While the government does have the burden of proving the facts necessary to support an increase in sentence level by a preponderance of the evidence, we conclude that the government has met that burden here. See Alfaro, 919 F.2d at 965. In Alfaro, this Circuit noted that “a presen-tence report generally bears sufficient indi-cia of reliability to be considered as evidence by the trial judge in making the factual determinations required by the sentencing guidelines.” Id. at 966. The Court went on to express its doubts as to the reliability of defendant’s objections to the PSR in the form of unsworn assertions because “[ujnsworn assertions do not bear ‘sufficient indicia of reliability to support [their] probable accuracy’, and, therefore, should not generally be considered by the trial court in making its factual findings.” Id. (footnote omitted). In the present case, the district court expressly based its finding that the five-level increase was appropriate on information contained in the presentence report. While Sanders’ attorney did object to the trial court’s reliance on the conclusion in the PSR that the funds were criminally derived, the objections were general un-sworn assertions of the type in Alfaro that the trial court was not required to credit. Despite a full opportunity to present an explanation of the source of the funds, Sanders himself proffered no explanation at all to the trial court, and his attorney offered only wholly general unsubstantiated and unverifiable claims that the money was received from unidentified inheritance, insurance and “gambling.” The oral explanations that Sanders did provide to the probation officer who prepared the PSR were likewise so nonspecific and unverifiable as to be discrediting. We hold that the trial court committed no error in failing to credit Sanders’ objections and in relying on the PSR. This conclusion is supported by the recent case of United States v. Hassan, 927 F.2d 303 (7th Cir.1991). In Hassan, a case with somewhat analogous facts, the Seventh Circuit affirmed the district court’s five-level" } ]

[ { "docid": "23045241", "title": "", "text": "v. Green, 882 F.2d 999, 1003 (5th Cir.1989). He must also show a reasonable probability that, but for counsel’s unprofessional errors, the sentence would have been significantly less harsh. Spriggs v. Collins, 993 F.2d 85, 88 (5th Cir.1993). Glinsey fails to make this showing for two reasons. First, a district court’s loss determination under § 2Fl.l(b)(l) is a factual finding reviewed for clear error. United States v. Oates, 122 F.3d 222, 225 (5th Cir.1997). The loss calculation need not be precise and will be affirmed so long as it reasonably estimates the loss using reasonably available information. See § 2F1.1, cmt. n. 8. Accordingly, “the court- can adopt facts contained in a PSR without inquiry, if those facts had an adequate evidentiary basis and the defendant does not present rebuttal evidence.” United States v. Puig-Infante, 19 F.3d 929, 943 (5th Cir.1994). If no relevant affidavits or other evidence is submitted to rebut the information in the PSR, the district court is free to adopt the PSR findings without further inquiry or explanation. United States v. Mir, 919 F.2d 940, 943 (5th Cir.1990). The defendant bears the burden of demonstrating that the information in the PSR is materially untrue. United States v. Rodriguez, 897 F.2d 1324, 1328 (5th Cir.1990). Glinsey has not carried this burden. The district court calculated Glinsey’s loss based on the total amount of food stamps redeemed ($1,506,128) less the reported gross sales ($239,810.94), for a total of $1,266,317.06. Glinsey’s offense level was increased by eleven because the loss was found to be between $800,000 and $1.5 million. § 2Fl.l(b)(2)(A). Glinsey does not dispute the finding that he illegally purchased and redeemed over $1.2 million in food stamps. At the hearing, his counsel argued that the amount of money paid by Glinsey to purchase the food stamps, typically 70-80 percent of the value of the stamps, should have been subtracted from the face value of the food stamps to arrive at the total loss. But no other evidence was offered to support this contention. The cases Glin-sey cites do not show that the district court’s reliance on the" }, { "docid": "17123021", "title": "", "text": "L.Ed.2d 858 (1995). The district court has wide discretion in determining the extent of the departure, and we will affirm an upward departure if (1) the court gives acceptable reasons for departing and (2) the extent of the departure is reasonable. See United States v. Hawkins, 87 F.3d 722, 728 (5th Cir.), cert. denied, — U.S. -, 117 S.Ct. 408, 136 L.Ed.2d 321 (1996). Route filed written objections to the pre-sentence report (“PSR”) and argued orally that the offenses—two of which did not receive any criminal history points—were too remote in time and too dissimilar to warrant consideration. The court noted Route’s objections but concluded that his criminal history category of 6 did not reflect adequately the seriousness of his past conduct nor the likelihood that he would commit future crimes. As such, the court adopted the PSR’s recommendation that Route receive an upward adjustment of one level. Because the court gave acceptable reasons for its decision, and because the extent of the departure was reasonable, we do not find any abuse of discretion. Second, Route contests the PSR’s conclusions that the extent of his check fraud scheme totaled $193,696.34, substantially greater than the $24,129.46 for which he was convicted. We review the PSR’s factual conclusions for clear error. See United States v. Mir, 919 F.2d 940, 943 (5th Cir.1990). Not only was the district court’s consideration of the PSR’s factual findings reasonable, but Route did not offer any rebuttal evidence to refute the factual findings. Thus, the court was free to adopt, the facts in the PSR without further inquiry. See United States v. Mueller, 902 F.2d 336, 346 (5th Cir.1990). IN. Finally, Route claims that he is entitled to a new trial because of ineffective assistance of counsel. Generally, we will not review on direct appeal an ineffective assistance claim that the defendant has failed to present to the district court; we will entertain such claims only in those rare cases where the record allows us to evaluate fairly the merits of the claim. See United States v. Navejar, 963 F.2d 732, 735 (5th Cir.1992). This is not" }, { "docid": "22923286", "title": "", "text": "sentencing. See United States v. Gracia, 983 F.2d 625, 629 (5th Cir.1993). The defendant bears the burden of demonstrating that the PSR is inaccurate; in the absence of rebuttal evidence, the sentencing court may properly rely on the PSR and adopt it. Id. at 630. The court is free to disregard a defendant’s unsworn assertions that the PSR is unreliable. Id. at 630 & nn. 21, 22; United States v. Lghodaro, 967 F.2d 1028, 1030 (5th Cir.1992) (objections in the form of unsworn assertions do not bear sufficient indicia of reliability to be considered). A close examination of Ayala’s PSR shows that there were sufficient factual findings to support the leadership adjustment. The PSR provided that a confidential informant had advised the Federal Bureau of Investigation that a large marijuana shipment would be sent from the BrownsvilleHarlingen area of Texas to an area in north Texas within a hidden compartment in a dark gray Peterbilt tractor-trailer with “AC Trucking” on both doors. On June 5, 1992, law-enforcement officers followed the above-described tractor-trailer to “Ayala’s property” near Canton, Texas. There, future codefendants Richard Gonzalez, Robert Gonzalez and Victor Garza, both of whom the PSR states were working “for Ayala,” unloaded the marijuana from the tractor-trailer into a mobile home. Ayala and Jose Galindo then left in the tractor-trailer and were apprehended. At the same time, officers detained Richard Gonzalez, Robert Gonzalez, and Victor Garza at the mobile home. Officers recovered 32 bundles on Ayala’s property containing 643 pounds (291 kilograms) of marijuana. A defendant’s role in the criminal activity for the purpose of applying guideline section 3B1.1 may be deduced inferentially from available facts. See e.g. United States v. Manthei, 913 F.2d 1130, 1135 (5th Cir.1990). Factors to consider include the exercise of decision making authority, the nature of participation in the commission of the offense, and the degree of control and authority exercised over others. U.S.S.G. § 3B1.1 comment, (n. 4). Here, the facts in the PSR providing that a substantial quantity of marijuana was transported to and stored upon Ayala’s property, with Ayala present, and that the three unloaders," }, { "docid": "23552888", "title": "", "text": "L.Ed.2d 445 (1993), Lowder’s right to present witnesses in his own defense does not encompass a right to suborn perjury. We therefore find no clear error in the district court’s two-level adjustment for obstruction of justice. B Lowder also challenges the district court’s assessment of his base offense level, calculated based on the PSR’s recommendation that Lowder be held responsible for 6,622 kilograms of marijuana. So long as the sentencing court’s adoption of a particular drug quantity is plausible in light of the record as a whole, it is not clearly erroneous. United States v. Sparks, 2 F.3d 574, 586 (5th Cir.1993). Lowder presents no competent rebuttal evidence to refute the PSR’s factual determinations regarding the scope of the conspiracy, and we therefore find no clear error. See United States v. Angulo, 927 F.2d 202, 205 (5th Cir.1991) (“If information is presented to the sentencing judge with which the defendant would take issue, the defendant bears the burden of demonstrating that the information cannot be relied upon because it is materially untrue, inaccurate or unreliable.”); Parker, 133 F.3d at 329 (“Mere objections do not suffice as competent rebuttal evidence.”). Moreover, the basé offense level assigned by the PSR covers offenses involving 3,000 to 10,000 kilograms of marijuana, an amount amply supported by the testimony presented at trial. C Lowder’s final contention is that the district court erred in following the PSR’s recommendation that Lowder receive a four-level adjustment for a leader/organizer role pursuant to U.S.S.G. § 3Bl.l(c). Lowder claims that he was at most a supplier for his sons, but did not organize or direct any of their distribution activities. We review the district court’s determination regarding the defendant’s leadership status only for clear error. See United States v. Powell, 124 F.3d 655, 667 (5th Cir.1997). In support of its recommendation for the four-level adjustment, the PSR made no factual findings, but merely stated that a federal agent would be available at sentencing to justify the leader/organizer conclusion. No agent appeared at sentencing, but the district court found “based upon the trial testimony, the jury’s verdict and inferences from the" }, { "docid": "22235511", "title": "", "text": "or will not affect, sentencing. A district court may rely on a presentence report to satisfy Rule 32. See, e.g., United States v. Brito, 136 F.3d 397, 415-17 (5th Cir.) (“In order to satisfy Rule 32, the court may make implicit findings by adopting the PSR.”), cert. denied, — U.S. -, 118 S.Ct. 1817, 140 L.Ed.2d 954 (1998). We have also held: Although a district court must resolve disputed issues of fact if it intends to use those facts as a basis for sentencing, the court can adopt facts contained in a PSR without inquiry, if those facts ha[ve] an adequate evidentiary basis and the defendant does not present rebuttal evidence. United States v. Puig-Infante, 19 F.3d 929, 943 (5th Cir.1994). A defendant’s rebuttal evidence must demonstrate that the information contained in the PSR is “materially untrue, inaccurate or unreliable,” and “[m]ere objections do not suffice as competent rebuttal evidence.” United States v. Parker, 133 F.3d 322, 329 (5th Cir.1998) (citations omitted). Huerta’s written but unsworn objections to the PSR stated only that “the defendant does not concede that he attempted to flee.” At the sentencing hearing, defense counsel asserted that Huerta had not fled and requested that the district court direct the government to produce witnesses who would substantiate the PSR’s assertion that Huerta had run from the police officers. Because Huerta failed to proffer adequate rebuttal evidence, the district court erred neither in refusing to require the government to produce witnesses nor in relying on the factual information provided by the PSR. See United States v. Mitchell, 166 F.3d 748, 754 (5th Cir.1999) (“If the defendant does not submit affidavits or other evidence to rebut the information in the PSR, the district court may adopt its findings without further inquiry or explanation.”); see also United States v. Ayala, 47 F.3d 688, 690 (5th Cir.1995) (“The defendant bears the burden of demonstrating that the PSR is inaccurate; in the absence of rebuttal evidence, the sentencing court may properly rely on the PSR and adopt it. The court is free to disregard a defendant’s unsworn assertions that the PSR is" }, { "docid": "22111032", "title": "", "text": "do so only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. Rodriguez contends: the district court’s calculations for the base offense level and the aggravating-role and obstruction-of-justice enhancements were not supported by a preponderance of the evidence; and, therefore, each claimed error constitutes reversible plain error for which we should grant relief. Rodriguez asserts that the district court’s claimed error for each of these calculations lies in its relying on the PSR. “[A] district court may adopt the facts contained in a PSR without further inquiry if those facts have an adequate evidentiary basis with sufficient indicia of reliability and the defendant does not present rebuttal evidence or otherwise demonstrate that the information in the PSR is unreliable”. United States v. Cabrera, 288 F.3d 163, 173-74 (5th Cir.2002). For the following reasons, the PSR contained sufficient facts to provide an adequate evidentiary basis for calculating the three belatedly challenged sentencing elements: the base offense level and the aggravating-role and obstruction-of-justice enhancements to it. For the base offense level, the PSR contains numerous details regarding Rodriguez’s firearms dealings. (Moreover, in addition to considering the PSR, the second judge considered the ATF reports and, on the record, identified each of the weapons for which he deemed Rodriguez responsible.) For the aggravating-role enhancement, the PSR shows Rodriguez was in charge of the daily operations of this private security company (BCPD) and possessed final decision-making authority. Finally, for the obstruction-of-justice enhancement, the PSR shows that, during the raid, federal agents learned that BCPD guards had received advance warnings from their supervisors that law enforcement agents were arresting the guards and had been told to vacate their job sites if their work documents were not in order. Rodriguez, however, insists he provided rebuttal evidence that prevented the district court’s being entitled to rely on the PSR. “If information is presented to the sentencing judge with which the defendant would take issue, the defendant bears the burden of demonstrating that the information cannot be relied upon because it is materially untrue, inaccurate or unreliable.” United States v. Angulo, 927 F.2d" }, { "docid": "22857644", "title": "", "text": "a PSR “bears sufficient indicia of reliability to be considered as evidence by the sentencing judge in making factual determinations.” United States v. Nava, 624 F.3d 226, 231 (5th Cir.2010) (quoting United States v. Trujillo, 502 F.3d 353, 357 (5th Cir.2007)). A district court, therefore, “may adopt the facts contained in a [PSR] without further inquiry if those facts have an adequate evidentiary basis with sufficient indicia of reliability and the defendant does not present rebuttal evidence or otherwise demonstrate that the information in the PSR is unreliable.” Trujillo, 502 F.3d at 357 (citation omitted). When faced with facts contained in the PSR that are supported by an .adequate evidentiary basis with sufficient indicia of reliability, a defendant must offer rebuttal evidence demonstrating that those facts are “materially untrue, inaccurate or unreliable.” United States v. Huerta, 182 F.3d 361, 364-65 (5th Cir.1999) (internal quotation marks and citation omitted). Mere objections to such supported facts are generally insufficient. United States v. Rodriguez, 602 F.3d 346, 363 (5th Cir. 2010) (“Because no testimony or other evi dence was submitted to rebut the information in the PSR, the district court was free to adopt the PSR’s findings without further inquiry or explanation.”). To summarize, our precedent is clear that the consideration of the mere fact of a prior arrest is prohibited. See, e.g., Johnson, 648 F.3d at 277-78 (“[Without sufficient indicia of reliability, a court may not factor in prior arrests when imposing a sentence .... We have long recognized that ‘an arrest, without more, is quite consistent with innocence.’ ”) (quoting United States v. Labarbera, 581 F.2d 107, 109 (5th Cir.1978)). When the PSR also contains a factual recitation of the defendant’s conduct that gave rise to a prior unadjudicated arrest, the district court must determine whether that factual recitation has an adequate evidentiary basis with sufficient indicia of reliability. See Trujillo, 502 F.3d at 357. If the factual recitation lacks sufficient indicia of reliability, then it is error for the district court to consider it at sentencing — regardless of whether the defendant objects or offers rebuttal evidence. Alternatively, if the" }, { "docid": "247576", "title": "", "text": "indictment or to which the defendant pleaded guilty. See U.S.S.G. § 2D1.1 comment 12; United States v. Vela, 927 F.2d 197 (5th Cir.), cert. denied, - U.S. -, 112 S.Ct. 214, 116 L.Ed.2d 172 (1991). Thus, the drug amounts estimated in the PSR could not have resulted from any misapprehension of the probation officer in this regard. . E.g., United States v. Alfaro, 919 F.2d 962 (5th Cir.1990). . United States v. Chavez, 947 F.2d 742 (5th Cir.1991) (report sufficiently reliable where based on coconspirator’s debriefing statements to DEA agents, which DEA agents credited and which were consistent with facts known to DEA); Vela (presentence report based on police investigation sufficiently reliable) (citing United States v. Marshall, 910 F.2d 1241 (5th Cir.1990), cert. denied, - U.S. -, 111 S.Ct. 976, 112 L.Ed.2d 1061 (1991)). . E.g., United States v. Angulo, 927 F.2d 202 (5th Cir.1991). The trial court, however, is free to ignore a defendant’s unsworn assertions about the falsehood or unreliability of information in the presentence report. See Chavez; Al-faro. . United States v. Mir, 919 F.2d 940 (5th Cir.1990) (district court free to accept facts as set forth in presentence report where defendant fails to submit rebuttal evidence) (citing United States v. Mueller, 902 F.2d 336 (5th Cir.1990)). . 18 U.S.C. § 3559(a). . 18 U.S.C. § 3583(b)(2). . See, e.g., United States v. Higdon, 832 F.2d 312, 313-14 (5th Cir.1987) (absence at trial of opportunity to develop a record on the merits of ineffective assistance of counsel claims precludes their resolution on direct appeal in all but rare cases), cert. denied, 484 U.S. 1075, 108 S.Ct. 1051, 98 L.Ed.2d 1013 (1988). . Gracia asserts that the district court failed accurately to advise him at rearraignment of his minimum and maximum exposure to penalties other than supervised release; that the district court violated Fed.R.Crim.P. 11(c)(3) by failing to advise him of his right to plead “not guilty,” of the privilege against self-incrimination, and of the nonbinding nature of any government recommendation as to sentencing; that the district court accepted his plea bargain with the government before receiving the" }, { "docid": "6988931", "title": "", "text": "trial judge in making factual determinations required by the sentencing guidelines.” United States v. Alfaro, 919 F.2d 962, 966 (5th Cir.1990). A sentencing court may “adopt facts contained in a PSR without inquiry, if those facts had an adequate evidentiary basis and the defendant does not present rebuttal evidence.” United States v. Puig-Infante, 19 F.3d 929, 943 (5th Cir.), cert. denied, — U.S. -, 115 S.Ct. 180, 130 L.Ed.2d 115 (1994). “If information is presented to the sentencing judge with which the defendant would take issue, the defendant bears the burden of demonstrating that the information cannot be relied upon because it is materially untrue, inaccurate or unreliable.” United States v. Angulo, 927 F.2d 202, 205 (5th Cir.1991). Objections in the form of unsworn assertions do not bear sufficient indicia of reliability to be considered. United States v. Lghodaro, 967 F.2d 1028, 1030 (5th Cir.1992). 2. Sterling a. Foreseeability Sterling claims that the district court incorrectly concluded—for sentencing purposes—that he could reasonably foresee transactions in the conspiracy involving at least 57 kilograms of cocaine. Addressing Sterling’s objection at sentencing, the district court made specific findings, wherein he referenced the evidence in the record to support his finding that Sterling could reasonably foresee that the conspiracy with which he was involved was dealing in very large quantities of cocaine. At the conclusion of the factual recitation—which encompasses over two full pages of transcript—the court stated to defense counsel, Now when I look at all that together I say it’s reasonable, it seems to me, by a preponderance of the evidence to find that Mr. Sterling knew or should have known that quantities of cocaine were being distributed in this organization in excess of fifty kilos. Now if you disagree with me, you tell me why? Defense counsel responded, “I cannot argue with you at that point, Your Honor.” Sterling falls well short of “demonstrating that the information cannot be relied upon because it is materially untrue, inaccurate or unreliable.” There is no basis upon which to conclude that the district court’s finding was clearly erroneous. 6. Double Jeopardy Sterling also contends" }, { "docid": "22070446", "title": "", "text": "its probable accuracy.” U.S.S.G. § 6A1.3, comment.; see also, United States v. Manthei, 913 F.2d 1130, 1138 (5th Cir.1990). A presentence report is considered reliable and may be considered as evidence by the trial judge in making sentencing determinations. United States v. Lghodaro, 967 F.2d 1028, 1030 (5th Cir.1992) (citing United States v. Sanders, 942 F.2d 894, 897-898 (5th Cir.1991)). Furthermore, if no relevant affidavits or other evidence is submitted to rebut the information contained in the PSR, the court is free to adopt its findings without further inquiry or explanation. United States v. Mir, 919 F.2d 940, 943 (5th Cir.1990). Vital failed to present any evidence to support his objection to the court’s reliance on the information set forward in the PSR pertaining to August’s testimony. Consequently, the district court’s reliance on the PSR was not clearly erroneous. ACCEPTANCE OF RESPONSIBILITY At sentencing, Vital argued that his plea of guilty and his admission of conduct comprising the offense of conviction demonstrated his acceptance of responsibility for his offense. Vital also protested the probation officer’s unfavorable recommendations based on Vital’s inability to recall the details of the offense. This court has not definitively determined the standard for reviewing a district court’s refusal to credit a defendant’s purported acceptance of responsibility. The court has applied, on separate occasions, the clearly erroneous standard, the “without foundation” standard, and the “great deference” standard when conducting such a review. United States v. Thomas, 12 F.3d 1350, 1372 & n. 39 (5th Cir.), cert. denied, — U.S. -, 114 S.Ct. 1861, 128 L.Ed.2d 483, and cert. denied, — U.S. -, 114 S.Ct. 2119, 128 L.Ed.2d 676 (1994). In Thomas, this court determined that, “for the purpose of this appeal, there appears to be no practical difference between the three standards.” Id. The sentencing guidelines shed considerable light on the deference which a reviewing court must afford the sentencing court in this context: “The sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review.” U.S.S.G. §" }, { "docid": "22784329", "title": "", "text": "decision of law applicable to the issues raised by the Defendants’ challenge. Furthermore, our prior decision was not clearly erroneous and would not work manifest injustice if allowed to stand. Accordingly, we turn now to consider the Defendants’ second argument in support of their allegation of error with respect to the inclusion of PUI losses in calculating their respective offense levels&emdash;that the losses should not have been counted because their judgments of acquittal at the close of the government’s case-in-ehief effectively precluded them from being able to offer evidence to rebut the findings in their respective revised PSRs detailing various frauds on PUI by them, such findings being based upon evidence presented at trial during the government’s case-in-chief. This argument is without merit, because the Defendants had ample other opportunities to submit any rebuttal evidence they desired. First, the Defendants had the opportunity to object to any and all factual findings in their respective revised PSRs and to submit with their objections any rebuttal evidence, for example affidavits, they desired the district court to consider. Second, the record discloses that neither Aramony nor Merlo proffered any rebuttal evidence by this method or attempted to proffer any such evidence at their respective sentencing hearings. Under these circumstances, the Defendants cannot be heard to complain about the district court’s reliance upon the findings in their respective revised PSRs regarding their conduct in defrauding PUI, which findings the district court determined were reliable. See United States v. Terry, 916 F.2d 167, 162 (4th Cir.1990) (holding that burden is on defendant to show inaccuracy or unreliability of factual information in PSR; thus, when a defendant merely objects to the accuracy or reliability of certain factual information in the PSR without affirmatively showing the factual information at issue in the PSR is inaccurate, the district court is “ ‘free to adopt the findings’ ” of the PSR “ ‘without more specific inquiry or explanation’ ” (quoting United States v. Mueller, 902 F.2d 336, 346 (4th Cir.1990))). In sum, we affirm the district court’s inclusion of the losses suffered by PUI attributable to the Defendants as" }, { "docid": "19334869", "title": "", "text": "use some sort of weapon — in this case, that was a knife— to coerce the material witness into having sex. So the Court believes that that adjustment is also warranted. A finding of reasonable foreseeability is a finding of fact that we review for clear error. United States v. Lghodaro, 967 F.2d 1028, 1030 (5th Cir.1992). The district court, in the above passage, was relying on testimony from the two victims as well as the much more detailed PSR. Gutierrez-Mendez had the burden of proving the PSR unreliable and materially untrue. United States v. Betancourt, 422 F.3d 240, 248 (5th Cir.2005). If no relevant affidavits or other evidence is submitted to rebut [the PSR], the court is free to adopt its findings without further inquiry or explanation. United States v. Reasor, 541 F.3d 366, 369 (5th Cir.2008); United States v. Alaniz, 726 F.3d 586, 619 (5th Cir.2013). Self-serving statements are insufficient to meet the defendant’s burden. See United States v. Londono, 285 F.3d 348, 355 (5th Cir.2002); United States v. Slaughter, 238 F.3d 580, 585 (5th Cir.2000). Nor do mere objections to the PSR suffice as competent rebuttal evidence. Alaniz, 726 F.3d at 619; United States v. Solis, 299 F.3d 420, 455 (5th Cir.2002). Gutierrez-Mendez offered nothing more than his self-serving statements of innocence and mere objections to the PSR. Plainly, he has not met his heavy burden of proving clear error in the factual findings, and we accordingly find no error in the § 2Ll.l(b)(5) and (7) enhancements. Whether we can also affirm as to the subsection (b)(6) enhancement requires us to address Gutierrez-Mendez’s final contention. B. Section 2Ll.l(b)(5) calls for a four-level enhancement (or an enhancement to level 20) if a dangerous weapon ... was brandished or otherwise used. Section 2Ll.l(b)(6) calls for a two-level enhancement (or an enhancement to level 18) if the offense involved intentionally or recklessly creating a substantial risk of ... serious bodily injury to another person, including a sexual assault. The Official Commentary to § 2L1.1 (specifically Comment 5) provides that courts shall not apply the adjustment in subsection (b)(6) if the" }, { "docid": "22080619", "title": "", "text": "conviction may be reversed under the plain error standard only to avoid a manifest miscarriage of justice. Id. “Such a miscarriage would exist only if the record is devoid of evidence pointing to guilt, or ... because the evidence on a key element of the offense was so tenuous that a conviction would be shocking.” United States v. Pierre, 958 F.2d 1304, 1310 (5th Cir.1992) (en banc). After a thorough review of the record, we find that the record is not so devoid of evidence pointing to guilt or so tenuous on a key element of the offense that her conviction would be shocking and, accordingly, we decline to reverse her conviction. F Finally, Mrs. Parker alleges various errors in her sentencing and the court’s adoption of the Presentence Report (“PSR”). We review the trial court’s legal interpretation and application of sentencing guidelines de novo and its factual findings in connection with sentencing for clear error. See United States v. Ismoila, 100 F.3d 380, 394 (5th Cir.1996). Facts contained in a PSR are considered reliable and may be adopted without further inquiiy if the defendant fails to present competent rebuttal evidence. See United States v. Puig-Infante, 19 F.3d 929, 943 (5th Cir.1994). Such rebuttal evidence must demonstrate that the PSR information is .“materially untrue, inaccurate or unreliable,” see United States v. Angulo, 927 F.2d 202, 205 (5th Cir.1991). Mere objections do not suffice as competent rebuttal evidence. See Puig-Infante, 19 F.3d at 943. Mrs. Parker first argues that the court erred in considering the confession she made to Agent Jenkins in deciding her sentence. We reject this argument because the statement was admissible and was introduced at trial. See United States v. Collins, 40 F.3d 95, 98 (5th Cir.1994). Moreover, at sentencing, “the court may,consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.” U.S.S.G. § 6A1.3 (Nov. 1995). Mrs. Parker next alleges that the district court erred in crediting the part of the PSR that stated that Mrs. Parker" }, { "docid": "23315733", "title": "", "text": "showing that information that the district court relied on in sentencing is materially untrue. See id. We find that Caldwell has failed to meet his burden. Moreover, the district court did not clearly err in its determination that Caldwell joined the conspiracy shortly after he began working for A-l. 4 Malmstrom’s presentence report contained statements about FBI records documenting fraudulent activity which the probation officer researched on microfiche and determined were in fact fraudulent. Malmstrom argues that the district court improperly used these findings, which were not elements of the charged offenses, and deprived him of the right to confront witnesses and cross-examine them on these alleged facts. As Malmstrom concedes, the Supreme Court has not decided whether the Sixth Amendment Confrontation Clause applies to sentencing proceedings. Confrontation rights at sentencing hearing are restricted. See United States v. Rodriguez, 897 F.2d 1324, 1328 (5th Cir.1990). In this case, the findings of the presentence report, which the court adopted, were supported by evidence from the trial and investigative research by the FBI and the probation office. “If information is presented to the sentencing judge with which the defendant would take issue, the defendant bears the burden of demonstrating that the information cannot be relied upon because it is materially untrue, inaccurate or unreliable.” United States v. Angulo, 927 F.2d 202, 205 (5th Cir.1991). Malmstrom failed to rebut the presentence report with any evidence other than an argument that all the loans listed were not fraudulent. Objections in the form of un-sworn assertions do not bear sufficient in-dicia of reliability to be considered. See United States v. Lghodaro, 967 F.2d 1028, 1030 (5th Cir.1992). Because any information may be considered, so long as it has “sufficient indicia of reliability to support its probable accuracy,” and because Malm-strom was given the opportunity at the sentencing hearing to present evidence to the contrary, we find that Malmstrom’s confrontation rights were not abridged. United States v. Marshall, 910 F.2d 1241, 1244 (5th Cir.1990). 5 Pat Malmstrom worked at the Waco A-l for three months as a salesman while he was in college. Gene Trout worked" }, { "docid": "22070445", "title": "", "text": "offense level. Therefore, the district court’s enhancement of Vital’s base offense level for possession of a dangerous weapon was not clearly erroneous. AMOUNT OF DRUGS ATTRIBUTABLE TO VITAL Relying on the testimony of August, the U.S. probation officer who prepared the PSR imputed an additional 340.2 grams of cocaine powder to Vital for sentencing purposes. The district court then used this finding to enhance Vital’s base offense level by an additional two points. Vital objected at the sentencing hearing, arguing that August’s testimony was hearsay on hearsay, made under duress, and with the hope or expectation of consideration for his testimony. This court is to uphold the district court’s factual findings regarding the quantity of drugs attributable to the defendant for sentencing purposes unless such findings are clearly erroneous. United States v. Robins, 978 F.2d 881, 889 (5th Cir.1992). In determining the relevant facts at sentencing, the district court is not restricted to information that would be admissible at trial. The district court may consider any information which has “sufficient indicia of reliability to support its probable accuracy.” U.S.S.G. § 6A1.3, comment.; see also, United States v. Manthei, 913 F.2d 1130, 1138 (5th Cir.1990). A presentence report is considered reliable and may be considered as evidence by the trial judge in making sentencing determinations. United States v. Lghodaro, 967 F.2d 1028, 1030 (5th Cir.1992) (citing United States v. Sanders, 942 F.2d 894, 897-898 (5th Cir.1991)). Furthermore, if no relevant affidavits or other evidence is submitted to rebut the information contained in the PSR, the court is free to adopt its findings without further inquiry or explanation. United States v. Mir, 919 F.2d 940, 943 (5th Cir.1990). Vital failed to present any evidence to support his objection to the court’s reliance on the information set forward in the PSR pertaining to August’s testimony. Consequently, the district court’s reliance on the PSR was not clearly erroneous. ACCEPTANCE OF RESPONSIBILITY At sentencing, Vital argued that his plea of guilty and his admission of conduct comprising the offense of conviction demonstrated his acceptance of responsibility for his offense. Vital also protested the probation officer’s" }, { "docid": "14473169", "title": "", "text": "as a leader/organizer. Gomez also contends that the district court erred by according him a two-level adjustment for a leadership role. Gomez raised this objection prior to sentencing and rear- gued it at sentencing. The district court then adopted the PSR’s recommendation and overruled the objection. Because the PSR has sufficient indicia of reliability to support its probable accuracy, it may be considered as evidence by the trial court at sentencing. United States v. Lghodaro, 967 F.2d 1028, 1030 (5th Cir.1992). The PSR assigned a two-level increase based on Gomez’s role. The PSR indicated that Gomez was an associate of Gonzalez’s who was present during negotiations regarding the sale of marijuana involved in the first load and was also present in Dallas before the arrival of the second load. He also participated in planning the second shipment. Trial testimony established that Gomez used his cellular phone to report that the second load of marijuana was ready to move and also gave the Cl expense money and instructions. Gomez has not demonstrated that the information in the PSR and developed at sentencing was materially unreliable. See United States v. Rodriguez, 897 F.2d 1324, 1328 (5th Cir.1990). The district court did not clearly err in this regard. See United States v. Mir, 919 F.2d 940, 943 (5th Cir.1990). Sufficiency of the Evidence Regarding Conspiracy and Possession Counts Against Gomez In a drug conspiracy prosecution, the Government must prove beyond a reasonable doubt: (1) the existence of an agreement between two or more persons to violate narcotics law; (2) the defendant’s knowledge of the agreement; and (3) the defendant’s voluntary participation in the agreement. United States v. Maltos, 985 F.2d 743, 746 (5th Cir.1992). The standard of review for a challenge to the sufficiency of the evidence is whether a reasonable trier of fact could have found that the evidence established the defendant’s guilt beyond a reasonable doubt. United States v. Stephens, 964 F.2d 424, 427 n. 8 (5th Cir.1992). We review the evidence in the light most favorable to the jury’s verdict, making all reasonable inferences and credibility choices in favor of" }, { "docid": "6988930", "title": "", "text": "919 F.2d 940, 943 (5th Cir.1990). A defendant’s base offense level for drug-trafficking offenses may be based on both “drugs with which the defendant was directly involved [under U.S.S.G. § lB1.3(a)(l)(A) ], and drugs that can be attributed to the defendant in a conspiracy as part of his ‘relevant conduct’ under [U.S.S.G.] § lB1.3(a)(l)(B).” United States v. Carreon, 11 F.3d 1225, 1230 (5th Cir.1994); see also U.S.S.G. § 2Dl.l(a)(3). “Relevant conduct” includes “all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity.” Carreon, 11 F.3d at 1230 (emphasis in original). Conduct may be relevant regardless whether it occurred during the commission of the offense of conviction, in preparation for the offense or during an attempt to avoid detection or responsibility for the offense. U.S.S.G. § lB1.3(a)(l)(B). In making its sentencing decisions, a district court may consider any relevant evidence that “has sufficient indicia of reliability to support its probable accuracy.” U.S.S.G. § 6A1.3(a). “[A] presentence report generally bears sufficient indicia of reliability to be considered as evidence by the trial judge in making factual determinations required by the sentencing guidelines.” United States v. Alfaro, 919 F.2d 962, 966 (5th Cir.1990). A sentencing court may “adopt facts contained in a PSR without inquiry, if those facts had an adequate evidentiary basis and the defendant does not present rebuttal evidence.” United States v. Puig-Infante, 19 F.3d 929, 943 (5th Cir.), cert. denied, — U.S. -, 115 S.Ct. 180, 130 L.Ed.2d 115 (1994). “If information is presented to the sentencing judge with which the defendant would take issue, the defendant bears the burden of demonstrating that the information cannot be relied upon because it is materially untrue, inaccurate or unreliable.” United States v. Angulo, 927 F.2d 202, 205 (5th Cir.1991). Objections in the form of unsworn assertions do not bear sufficient indicia of reliability to be considered. United States v. Lghodaro, 967 F.2d 1028, 1030 (5th Cir.1992). 2. Sterling a. Foreseeability Sterling claims that the district court incorrectly concluded—for sentencing purposes—that he could reasonably foresee transactions in the conspiracy involving at least 57 kilograms of cocaine. Addressing" }, { "docid": "22923285", "title": "", "text": "manager or supervisor” only. This Court will disturb a district court’s factual finding that a defendant was a leader/organizer pursuant to § 3B1.1 only if it is clearly erroneous. United States v. Barreto, 871 F.2d 511, 512 (5th Cir.1989). Factual findings are not clearly erroneous if they are plausible in light of the record read as a whole. United States v. Whitlow, 979 F.2d 1008, 1011 (5th Cir.1992). However, there must be an acceptable evidentiary basis for the court’s factfindings at the sentencing hearing. United States v. Rodriguez, 897 F.2d 1324, 1327-28 (5th Cir.), cert. denied, 498 U.S. 857, 111 S.Ct. 158, 112 L.Ed.2d 124 (1990). As the party seeking an adjustment in the sentence level, the government had the burden of proving by a preponderance of the evidence the facts necessary to support the adjustment. See United States v. Elwood, 999 F.2d 814, 817 (5th Cir.1993); United States v. Patterson, 962 F.2d 409, 415 (5th Cir.1992). Generally, a PSR bears sufficient indicia of reliability to permit the sentencing court to rely on it at sentencing. See United States v. Gracia, 983 F.2d 625, 629 (5th Cir.1993). The defendant bears the burden of demonstrating that the PSR is inaccurate; in the absence of rebuttal evidence, the sentencing court may properly rely on the PSR and adopt it. Id. at 630. The court is free to disregard a defendant’s unsworn assertions that the PSR is unreliable. Id. at 630 & nn. 21, 22; United States v. Lghodaro, 967 F.2d 1028, 1030 (5th Cir.1992) (objections in the form of unsworn assertions do not bear sufficient indicia of reliability to be considered). A close examination of Ayala’s PSR shows that there were sufficient factual findings to support the leadership adjustment. The PSR provided that a confidential informant had advised the Federal Bureau of Investigation that a large marijuana shipment would be sent from the BrownsvilleHarlingen area of Texas to an area in north Texas within a hidden compartment in a dark gray Peterbilt tractor-trailer with “AC Trucking” on both doors. On June 5, 1992, law-enforcement officers followed the above-described tractor-trailer to “Ayala’s property”" }, { "docid": "22111033", "title": "", "text": "PSR contains numerous details regarding Rodriguez’s firearms dealings. (Moreover, in addition to considering the PSR, the second judge considered the ATF reports and, on the record, identified each of the weapons for which he deemed Rodriguez responsible.) For the aggravating-role enhancement, the PSR shows Rodriguez was in charge of the daily operations of this private security company (BCPD) and possessed final decision-making authority. Finally, for the obstruction-of-justice enhancement, the PSR shows that, during the raid, federal agents learned that BCPD guards had received advance warnings from their supervisors that law enforcement agents were arresting the guards and had been told to vacate their job sites if their work documents were not in order. Rodriguez, however, insists he provided rebuttal evidence that prevented the district court’s being entitled to rely on the PSR. “If information is presented to the sentencing judge with which the defendant would take issue, the defendant bears the burden of demonstrating that the information cannot be relied upon because it is materially untrue, inaccurate or unreliable.” United States v. Angulo, 927 F.2d 202, 205 (5th Cir.1991). Rodriguez maintains he met this burden by submitting written objections to the PSR. These objections, however, are not evidence — they are merely “unsworn assertions”. United States v. Lghodaro, 967 F.2d 1028, 1030 (5th Cir.1992) (citing United States v. Sanders, 942 F.2d 894, 897-98 (5th Cir.1991)). Because no testimony or other evidence was submitted to rebut the information in the PSR, the district court was free to adopt the PSR’s findings without further inquiry or explanation. United States v. Mir, 919 F.2d 940, 943 (5th Cir.1990) (citing United States v. Mueller, 902 F.2d 336, 346 (5th Cir.1990)). The district court committed no error. Again, our plain-error review draws to a close. III. For the foregoing reasons, the judgment is AFFIRMED." }, { "docid": "23315734", "title": "", "text": "“If information is presented to the sentencing judge with which the defendant would take issue, the defendant bears the burden of demonstrating that the information cannot be relied upon because it is materially untrue, inaccurate or unreliable.” United States v. Angulo, 927 F.2d 202, 205 (5th Cir.1991). Malmstrom failed to rebut the presentence report with any evidence other than an argument that all the loans listed were not fraudulent. Objections in the form of un-sworn assertions do not bear sufficient in-dicia of reliability to be considered. See United States v. Lghodaro, 967 F.2d 1028, 1030 (5th Cir.1992). Because any information may be considered, so long as it has “sufficient indicia of reliability to support its probable accuracy,” and because Malm-strom was given the opportunity at the sentencing hearing to present evidence to the contrary, we find that Malmstrom’s confrontation rights were not abridged. United States v. Marshall, 910 F.2d 1241, 1244 (5th Cir.1990). 5 Pat Malmstrom worked at the Waco A-l for three months as a salesman while he was in college. Gene Trout worked at the Bryan A-l for three months as a salesman. They argue that the district court erred by refusing to grant them a two level reduction pursuant to U.S.S.G. § 3B1.2(b) for being minor participants. Samantha Davis, who worked only 4 weeks at the Bryan A-l and was acquitted of the conspiracy charge, argues that she deserved a four level reduction as a minimal participant. The Government argues that the district court did not err in evaluating each of these defendants’ fraudulent activity as “average” and determining that these defendants were not less culpable than most of the others. Section 3B1.2 of the Sentencing Guidelines is designed to reduce a sentence when the defendant is substantially less culpable than the average participant in the offense. See United States v. Edwards, 65 F.3d 430, 434 (5th Cir.1995). Section 3B1.2 provides: Based on the defendant’s role in the offense, decrease the offense level as follows: (a) If the defendant was a minimal participant in any criminal activity, decrease by 4 levels. (b) If the defendant was a" } ]

[ { "docid": "11386974", "title": "", "text": "the interpretation is a conclusion of law, which we review de novo. See S. Cent. Bell Tel. Co. v. Allnet Commc’ns Servs., Inc., 986 F.2d 1418, 1993 WL 58745, at *4 (5th Cir.1993) (unpublished opinion) (“[Because the district court mistakenly called an interpretation of contract a finding of fact, we are not bound by the clearly erroneous standard in our review of that interpretation.”). If, on the other hand, the district court merely stated a finding of fact, our review is limited for clear error. Assuming arguendo a de novo standard of review, we must independently determine whether McLane is an affiliate of PFS. The Guaranty does not define the term “affiliate.” Under Texas law, words not defined in a contract are to be given their “plain and ordinary meaning.” Certain Underwriters at Lloyds, London v. Law, 570 F.3d 574, 577 (5th Cir.2009) (internal quotation marks and citation omitted). Black’s Law Dictionary defines “affiliate” as “[a] corporation that is related to another corporation by shareholdings or other means of control; a subsidiary, parent, or sibling corporation.” Black’s Law Dictionary (9th ed.2009). There is no evi dence in the record, nor has either party argued, that McLane is an affiliate of PFS. In fact, such a relationship would be virtually impossible given that PFS sold its United States and Canadian operations to Ameriserve in 1997 — 10 years prior to the formation of McLane. Thus, the record is clear that McLane is not an affiliate of PFS, and therefore is not a “Creditor” whose accounts are secured by the Guaranty. Accordingly, there is simply no basis for holding Wederquist personally liable for the Table Rock Debts under the Guaranty. McLane attempts in vain to rebut this argument by citing a separate provision of the Guaranty. Section 10 of the Guaranty provides as follows: “This Guaranty shall be binding upon [Wederquist], his or her heirs, personal representatives and assigns, and shall inure to the benefit of and be enforceable by Creditor and its successors, transferees and assigns.” (emphasis added). McLane argues that as a successor, transferee, or assign of PFS, the Guaranty" } ]

[ { "docid": "84936", "title": "", "text": "the non-corporate subsidiary. We read the first use of “officer” as setting forth a contractual category. It defines “officer” for the purposes of entitling a person qualifying under that definition to indemnification and advancement. For this reason, this apparent circuity — defining “officer” as including any officer — is not problematic in and of itself. But the second use of the word officer in this provision remains undefined. From the face of the instrument, it is not immediately apparent what characteristics make someone an officer. We look to the dictionary definition of officer for “assistance in determining the plain meaning” of this undefined term. Lorillard Tobacco Co. v. Am. Legacy Found,., 903 A.2d 728, 738 (Del.2006). We look here first “because dictionaries are the customary reference source that a reasonable person in the position of a party to a contract would use to ascertain the ordinary meaning of words not defined in the contract.” Id. Black’s Law Dictionary defines officer as “a person who holds an office of trust, authority, or command.” Black’s Law Dictionary 1193 (9th ed.2009). Merriam Webster defines it similarly. See Merriam-Webster Collegiate Dictionary (11th ed. 2009) (“One who holds an office of trust, authority, or command.”). According to American Heritage Dictionary, an officer is “[o]ne who holds an office of authority or trust in an organization, such as a corporation.” Am. Heritage Dictionary of the English Language (5th ed.2013). Random House College Dictionary adds to the definition an element of election or appointment, defining officer as “a person appointed or elected to a position of responsibility or authority in an organization.” Random House Coll. Dictionary (Revised Ed.1980). We can glean from these definitions that the plain meaning of the term Officer is someone holding a position of trust, authority, or command. Only one of the four definitions suggests that for a person to be considered an officer, he or she must be elected or appointed to that position. We therefore conclude that the election or appointment requirement cannot properly be considered a part of the ordinary, dictionary definition of officer. Equipped with this definition of officer," }, { "docid": "14791259", "title": "", "text": "precise definition, it appears that with respect to section 101(31)(B)(i), “director” means an individual who sits on the board of directors of a corporation. See Rupp v. United Security Bank (In re Kunz), 489 F.3d 1072, 1077 (10th Cir.2007). In Kunz, the Tenth Circuit stated that “[w]hen the term ‘director’ is used in reference to a corporation ... the term plainly means a person who is a member of the governing board of the corporation and participates in corporate governance.” Id. (citing Webster’s Third New Internat’l Dictionary 641 (1993); Black’s Law Dictionary 472-73 (7th ed. 1999)). The term “officer” is likewise not defined by the Code. However, courts have looked to Black’s Law Dictionary as a source of authority. See Office of the U.S. Trustee v. Fieldstone Mortgage Co., No. 08-755, 2008 WL 4826291, at *3 n. 12 (D.Md. Nov.5, 2008); Public Access Techn., 307 B.R. at 506. According to Black’s, an “officer” is defined as a “person elected or appointed by the board of directors to manage the daily operations of a corporation, such as the CEO, president, secretary, or treasurer.” Blacií’s Law Dictionary 1193 (9th ed. 2009). Courts have also looked to state corporate law (including the Delaware Code) for additional guidance. See, e.g., Fieldstone Mortgage Co., 2008 WL 4826291, at *3. In Fieldstone Mortgage Co., the court examined different laws — both state and federal — and concluded that “board appointment or election is frequently identified as distinguishing ‘officer’ positions from other titled positions within a corporation” and that “if that feature is present ... the titled position ordinarily is an ‘officer’ position as a matter of law.... [T]he definition of ‘officer’ [need not] require additional ‘traditional elements, like decision-making.... ”’Id. at *13-14. An individual’s title, by itself, is insufficient to establish that an individual is a director or officer. See, e.g., In re Longview Aluminum, LLC, 419 B.R. 351, 355 (Bankr.N.D.Ill.2009) (“[I]t is not simply the title ‘director’ or ‘officer’ that renders an individual an insider; rather it is the set of legal rights that a typical corporate director or officer holds.”); NMI Sys. v. Pillard" }, { "docid": "23084933", "title": "", "text": "that plays two discrete roles during the dumping process — e.g,, acting both as exporter and importer, as Agro did here— can be considered “affiliated” with itself. Commerce instead argues that § 1677(33) generally, and § 1677(33)(G) in particular, establishes that affiliation exists where there is a “control relationship,” and because “an entity may control itself,” an entity can also be considered as “affiliated” with itself. Agro counters that the definition provided in § 1677(33) makes plain that affiliation requires a minimum of two entities, as each of the scenarios listed in that section makes reference to two or more persons or organizations. Commerce’s reading of § 1677(33) — and, by extension, § 1675(a)(4) — fails to convince us that the term “affiliated” is sufficiently ambiguous to permit us to proceed to the second step of the Chevron analysis, particularly as we find that Agro’s less-tortured interpretation comports with both the ordinary usage of the term “affiliated” and the use of that term elsewhere in the antidumping statute. First, Agro’s view that “affiliation” requires the presence of two or more entities is consistent with the ordinary usage of the word as evidenced by standard dictionary definitions of “affiliate” (as a noun and verb) and “affiliated.” “In order to ascertain the established meaning of a term ..., it is appropriate to consult dictionaries.” Pesquera Mares, 266 F.3d at 1382 (internal quotation marks and citation omitted); see also MCI Telecomm., 512 U.S. at 225, 114 S.Ct. 2223. Every dictionary we have consulted defines these words such that the concept of a person or organization affiliating with itself is excluded or, at the very least, highly implausible. For example, the Oxford English Dictionary (2d ed.1991), defines “affiliated” as “[a]dopted as a child or fixed in paternity. Usually figlmatwe]. United in a dependent relation, as the branches of a society to the central organization.” Id. at 217. Echoing the definition of “affiliated” given in § 1677(33), Black’s Law Dictionary (7th ed.1999), defines the noun “affiliate” as “[a] corporation that is related to another corporation by shareholdings or other means of control; a subsidiary, parent," }, { "docid": "4227366", "title": "", "text": "of a corporation by the person involved” (internal quotation marks omitted))). The Manufacturers argue that we should interpret “control” under section 1333.85(B)(4) to mean “actual control, as effected through a majority voting interest, not the lesser ability merely to influence that a minority interest may provide.” They point to the ordinary meaning of “control” and to the definition of “control” found in the sixth edition of Black’s Law Dictionary (the version in print in 1990, the year of the enactment of section 1333): the “[pjower or authority to manage, direct, superintend, restrict, regulate, govern, administer, or oversee.” The Distributors, on the other hand, argue that we should use the definition of “control” reflected in the current edition of Black’s Law Dictionary, and applied by courts in the context of federal securities law and by the Ohio legislature in the corporate shareholder transactions section of the Ohio Revised Code: “[t]he direct or indirect power to govern the management and policies of a person or entity, whether through ownership of voting securities, by contract or otherwise.” Black’s Law Dictionary 378 (9th ed.2009). The parties agree as to the following facts regarding Miller’s and Coors’s control of MillerCoors. Miller and Coors each have fifty percent of the voting rights in MillerCoors. Miller and Coors have equal representation on the MillerCoors Board of Directors, with both Miller and Coors appointing five of the ten Board members. Peter Coors, the Chairman of Coors’s Board, is also the Chairman of the MillerCoors Board. The MillerCoors Operating Agreement provides that all of the Board members owe their fiduciary duty to the company that appointed them (Miller or Coors) and not to MillerCoors. Effectively, Miller and Coors each has a veto right over the operating decisions of MillerCoors. Neither Miller nor Coors has majority control over MillerCoors. Each party asks us to interpret these facts in favor of its position. Upon review, we agree with the reasoning of the district court and conclude that Miller and Coors “exercise control” over MillerCoors under the meaning of subsection (B)(4). See Beverage Distribs., 803 F.Supp.2d at 780-81 (“Miller and Coors exercise" }, { "docid": "4227365", "title": "", "text": "Hill Distrib. Co., No. 2:05-CV-00298, slip op. at *13 (S.D.Ohio Apr. 3, 2006)). Thus, we consider subsection (D) in light of whether Miller and Coors exercise control of MillerCoors within the meaning of subsection (B)(4). See Heineken, 2011 WL 5626592, at *4. Neither the Ohio legislature nor the Ohio Supreme Court has defined the term “exercise control” in the context of the Act. Where a statutory term is undefined, the Ohio Supreme Court has held that courts should give the words their “ordinary and common” meaning. Pruszynski v. Reeves, 117 Ohio St.3d 92, 94, 881 N.E.2d 1230, 1233 (Ohio 2008). The district court found that Miller and Coors exercise control over MillerCoors because they each have fifty-percent control and “equal control is a form of control.” Beverage Distribs., 803 F.Supp.2d at 777-79 (citing S.E.C. v. Platforms Wireless Int'l Corp., 617 F.3d 1072, 1087 (9th Cir.2010) (noting that control in stock ownership cases is “a question of fact which depends upon the totality of the circumstances including an appraisal of the influence upon management and policies of a corporation by the person involved” (internal quotation marks omitted))). The Manufacturers argue that we should interpret “control” under section 1333.85(B)(4) to mean “actual control, as effected through a majority voting interest, not the lesser ability merely to influence that a minority interest may provide.” They point to the ordinary meaning of “control” and to the definition of “control” found in the sixth edition of Black’s Law Dictionary (the version in print in 1990, the year of the enactment of section 1333): the “[pjower or authority to manage, direct, superintend, restrict, regulate, govern, administer, or oversee.” The Distributors, on the other hand, argue that we should use the definition of “control” reflected in the current edition of Black’s Law Dictionary, and applied by courts in the context of federal securities law and by the Ohio legislature in the corporate shareholder transactions section of the Ohio Revised Code: “[t]he direct or indirect power to govern the management and policies of a person or entity, whether through ownership of voting securities, by contract or otherwise.” Black’s" }, { "docid": "16139515", "title": "", "text": "not by reference to what might satisfy the purposes of one of the parties to [them].” Berger, 771 F.2d at 1568 (quoting United States v. Armour & Co., 402 U.S. 673, 682, 91 S.Ct. 1752, 29 L.Ed.2d 256 (1971) (discussing consent decrees)); see also Seabury Constr. Corp. v. Jeffrey Chain Corp., 289 F.3d 63, 68 (2d Cir. 2002) (“Where the contract is unambiguous, courts must effectuate its plain language.”). The Settlement Agreements exclude from the settlement class “any parent, subsidiary, affiliate, officer, or director of AIG.” App’x at 1035 (emphasis added). The parties agree that the term “affiliate” is not defined in the Settlement Agreements. Like the district court, we begin by consulting Black’s Law Dictionary, which defines an affiliate, in the context of securities, as “[o]ne who controls, is controlled by, or is under common control with an issuer of a security.” Affiliate, Black’s Law Dictionary (10th ed. 2014). Thus, whether the Plans are “affiliates” of AIG turns on whether they are controlled by, or are under common control with, AIG. We note that we would reach the same conclusion if we looked to the definition of “affiliate” in the rules promulgated by the Securities and Exchange Commission under the Securities Act of 1933 and the Securities Exchange Act of 1934. SEC Rule 144 defines an “affiliate” of an issuer of securities as “a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such issuer.” 17 C.F.R. § 230.144(a)(1). And Rule 12b-2 of SEC Regulation 12B defines an “affiliate” as a “person' that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the person specified.” Id. § 240.12b-2. “Control,” in turn, is defined by Black’s Law Dictionary as the “direct or indirect power to govern the management and policies of a person or entity, whether through ownership of voting securities, by contract, or otherwise; the power or authority to manage, direct, or oversee.” Control, Black’s Law Dictionary (10th ed. 2014). This definition of “control” is virtually identical" }, { "docid": "3990000", "title": "", "text": "shares as to which Trustee has received voting instructions.” The Committee also had the discretion to limit, by percentage, the amount of money any one participant could contribute to any single investment fund and could restrict the frequency with which participants could reallocate their assets among the different funds. In the end, the Profit-Sharing Committee had managerial and operational control over the Plan — albeit for the benefit of the participants — and because Motorola controlled the Committee through appointment and removal of its members, Motorola had structural organizational control over the Plan. This degree of control is sufficient to make the Plan an affiliate of Motorola, and as an affiliate of Motorola, the Plan is specifically excluded from the class. Accordingly, for the foregoing reasons, the district court’s order disallowing the Plan’s claim to a share of the Motorola settlement proceeds is Affirmed. . The district court used the sixth edition of Black’s Law Dictionary, which only contains a plain-language definition of the term \"affiliate.” However, the sixth edition also includes a definition for the related term \"affiliate company,” which is defined as a company \"controlled” by another company. Black’s Law Dictionary 58 (6th ed. 1990). This focus on control is important for purposes of securi ties law and is the dispositive inquiry in determining whether or not an entity is an affiliate. . The quoted definition is for the noun form of ''control.' Black’s Law Dictionary also contains a definition for the verb form that is substantially similar to the noun definition, but speaks in slightly more general language. Accordingly, ''control” as a verb means: \"1. To exercise power or influence over <the judge controlled the proceedings;-. 2. To regulate or govern <by law, the budget office controls expenditures >. 3. To have a controlling interest in <the five shareholders controlled the company>.” Black's Law Dictionary 378 (9th ed. 2009). . We note that the Plan participants, as the plaintiffs in Howell, necessarily took the position that the Committee is an ERISA fiduciary. Howell v. Motorola, Inc., 633 F.3d 552, 562-64 (7th Cir.2011). This is an implicit acknowledgment" }, { "docid": "5123059", "title": "", "text": "Oncor was an “affiliate” of Telcor for the purposes of binding Oncor to the Contract. Generally, an “affiliate” is defined as a “[c]ompany effectively controlled by another company. A branch, division, or subsidiary____ Corporations which are related as parent and subsidiary, characterized by identity of ownership of capital stock.” Black’s Law Dictionary 58 (6th ed. 1990). Even if this definition could be construed to support Alamria’s position, it is insufficient in its definiteness and authority to justify a holding that Oncor is bound to the Alamria/Telcor Contract. Moreover, Alamria has failed to cite and this court is unaware of, any cases indicating that the term “affiliate” is commonly used to describe the relationship between Telcor and Oncor. However, there is a sharp dispute of fact regarding what Switzer represented, if anything, to Enany regarding whether Oncor would be bound under the Contract. Because the term “affiliates” as used in this Contract is ambiguous, Alamria will be given an opportunity to prove, at an evidentiary hearing, that the parties manifested an intent for the term to refer to Oncor. Oncor may also be bound to the Alamria/Telcor Contract, including the arbi tration clause, by means of traditional principles of agency. See Thomson-CSF, 64 F.3d at 777 (“Traditional principles of agency law may bind a nonsignatory to an arbitration agreement.”); Convention art. II, ¶ 1 (requiring Contracting States to enforce arbitration agreements between parties “in respect of a defined legal relationship, whether contractual or not”). As an officer of Oncor, Switzer may have bound Oncor to the Alamria/Telcor Contract even though he signed the Contract as an officer of Telcor. In fact, under the doctrine of apparent authority, Switzer, with the appropriate representations, could have bound Oncor to the Contract even absent its intention to be bound. The Maryland courts define apparent authority as follows: Apparent authority may arise when the actions of the principal, reasonably interpreted, cause a third person to believe in good faith that the principal consents to the acts of the agent. Apparent authority also may arise when the principal knowingly permits the agent to act in a" }, { "docid": "16139514", "title": "", "text": "not consider the statutory limitations imposed on a sponsor’s control over an employee benefit plan under ERISA. Because those limitations are substantial, the Plans cannot be considered “affiliates” under any ordinary or specialized understanding of that term, and certainly not when viewed in the context of the Settlement Agreements. A Like consent decrees, settlement agreements are “hybrid[s] in the sense that they are at once both contracts and orders; they are construed largely as contracts, but are enforced as orders.” Berger v. Heckler, 771 F.2d 1556, 1567-68 (2d Cir. 1985) (citation omitted). As contracts, we interpret them in accordance with general principles of contract law. See Collins v. Harrison-Bode, 303 F.3d 429, 433 (2d Cir. 2002). “When interpreting a contract, the intention of the parties should control, and the best evidence of intent is the contract itself.” Cont'l Ins. Co. v. Atl. Cas. Ins. Co., 603 F.3d 169, 180 (2d Cir. 2010) (alterations and internal quotation marks omitted). Thus, if their terms are unambiguous, we must interpret the Settlement Agreements “within [their] four corners, and not by reference to what might satisfy the purposes of one of the parties to [them].” Berger, 771 F.2d at 1568 (quoting United States v. Armour & Co., 402 U.S. 673, 682, 91 S.Ct. 1752, 29 L.Ed.2d 256 (1971) (discussing consent decrees)); see also Seabury Constr. Corp. v. Jeffrey Chain Corp., 289 F.3d 63, 68 (2d Cir. 2002) (“Where the contract is unambiguous, courts must effectuate its plain language.”). The Settlement Agreements exclude from the settlement class “any parent, subsidiary, affiliate, officer, or director of AIG.” App’x at 1035 (emphasis added). The parties agree that the term “affiliate” is not defined in the Settlement Agreements. Like the district court, we begin by consulting Black’s Law Dictionary, which defines an affiliate, in the context of securities, as “[o]ne who controls, is controlled by, or is under common control with an issuer of a security.” Affiliate, Black’s Law Dictionary (10th ed. 2014). Thus, whether the Plans are “affiliates” of AIG turns on whether they are controlled by, or are under common control with, AIG. We note that" }, { "docid": "84935", "title": "", "text": "case law to conclude that the usual and ordinary meaning of vice president is unambiguous and means that Aleynikov is an officer. The District Court’s focus of its analysis on the meaning of the term vice president, which does not appear at all in Section 6.4 of the By-Laws, was its first and most significant error. The term officer appears in the relevant language of the By-Laws, and it is the interpretation of the term officer that determines whether Aleynikov is entitled to advancement. In analyzing whether vice president is ambiguous, the District Court analyzed a term that does not appear in the relevant portion of the contract. Having noted this crucial error of interpretation, we move to the text of the relevant part of Section 6.4 to determine whether it is unambiguous. At first blush, the definition of “officer” with respect to non-corporate subsidiaries is fairly circular. “Officer,” as used in the By-Laws, includes: (1) any officer; (2) a person serving in a similar capacity; or (3) a person serving as the manager of the non-corporate subsidiary. We read the first use of “officer” as setting forth a contractual category. It defines “officer” for the purposes of entitling a person qualifying under that definition to indemnification and advancement. For this reason, this apparent circuity — defining “officer” as including any officer — is not problematic in and of itself. But the second use of the word officer in this provision remains undefined. From the face of the instrument, it is not immediately apparent what characteristics make someone an officer. We look to the dictionary definition of officer for “assistance in determining the plain meaning” of this undefined term. Lorillard Tobacco Co. v. Am. Legacy Found,., 903 A.2d 728, 738 (Del.2006). We look here first “because dictionaries are the customary reference source that a reasonable person in the position of a party to a contract would use to ascertain the ordinary meaning of words not defined in the contract.” Id. Black’s Law Dictionary defines officer as “a person who holds an office of trust, authority, or command.” Black’s Law Dictionary" }, { "docid": "3989995", "title": "", "text": "Dictionary. But we refer to the ninth and most recent edition of Black’s, which (unlike the earlier edition relied on by the district court) specifically includes a securities-law referent for the term “affiliate.” An “affiliate” is “[o]ne who controls, is controlled by, or is under common control with an issuer of a security.” Black’s Law Dictionary 67 (9th ed. 2009). On this more appropriate contextual definition, “control” by or in common with the issuer of a security is the key inquiry in assessing whether an entity is an affiliate. This requirement is also reflected in the Securities and Exchange Commission rules promulgated under the authority of the Securities Act of 1933 and the Securities Exchange Act of 1934. For example, S.E.C. Rule 144 defines an “affiliate” of an issuer of securities as “a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such issuer.” 17 C.F.R. § 230.144(a)(1). Similarly, Rule 12b-2 of S.E.C. Regulation 12B, which governs the registration and reporting of securities, defines an “affiliate” as a “person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the person specified.” Id. § 240.12b-2. “Control,” in turn, is defined as the “direct or indirect power to govern the management and policies of a person or entity, whether through ownership of voting securities, by contract, or otherwise; the power or authority to manage, direct, or oversee.” Black’s Law Dictionary 378 (9th ed. 2009). This definition is almost identically replicated in Rule 12b-2, which defines “control” as “the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise.” 17 C.F.R. § 240.12b-2. On this securities-law understanding of “affiliate” and the concept of “control,” Motorola, acting through its Board of Directors, controlled the Profit-Sharing Committee, the designated Plan Administrator. Because Motorola appointed and removed Committee members at will, it had structural organizational control over the management and policies" }, { "docid": "3989994", "title": "", "text": "been incorporated into a settlement agreement enforceable as a contract under state law. The Stipulation of Settlement was approved by the district court, and there is nothing to indicate that either the court or the parties intended it to modify the original class definition. Federal securities law governed the interpretation of the class definition at the time the class was certified, and unless modified, that meaning should prevail notwithstanding the incorporation of the class definition into a settlement agreement enforceable under Illinois contract law. Moreover, the choice-of-law clause in the Stipulation specifically reserves a role for federal law. It provides that the Stipulation “shall be governed by the internal laws of the State of Illinois without regard to conflicts of laws, except to the extent that federal law ... governs.” Because the interpretation of a class definition ordinarily turns on the substantive law that governs the claim, federal securities law controls. This brings us back to the question of the securities-law meaning of “affiliate,” and we, like the district court, begin by consulting Black’s Law Dictionary. But we refer to the ninth and most recent edition of Black’s, which (unlike the earlier edition relied on by the district court) specifically includes a securities-law referent for the term “affiliate.” An “affiliate” is “[o]ne who controls, is controlled by, or is under common control with an issuer of a security.” Black’s Law Dictionary 67 (9th ed. 2009). On this more appropriate contextual definition, “control” by or in common with the issuer of a security is the key inquiry in assessing whether an entity is an affiliate. This requirement is also reflected in the Securities and Exchange Commission rules promulgated under the authority of the Securities Act of 1933 and the Securities Exchange Act of 1934. For example, S.E.C. Rule 144 defines an “affiliate” of an issuer of securities as “a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such issuer.” 17 C.F.R. § 230.144(a)(1). Similarly, Rule 12b-2 of S.E.C. Regulation 12B, which governs the registration and reporting of securities," }, { "docid": "5123058", "title": "", "text": "in entering into this contract. Contract ¶ 25. The Restatement (Second) of Contracts § 209(3) (1981) provides, in full: Where the parties reduce an agreement to a writing which in view of its completeness and specificity reasonably appears to be a complete agreement, it is taken to be an integrated agreement unless it is established by other evidence that the writing did not constitute a final expression. The Restatement provides that if a writing is a complete integration (a preliminary determination made by the court, see Restatement (Second) of Contracts § 210(3)), parol evidence of a prior agreement within the scope of the integrated agreement may not be considered by the trier of fact. See id. §§ 213(2), 216. However, parol evidence is admissible to explain what the parties meant to express when using an ambiguous term in an integrated agreement. See id. § 214(c) & emt. b., illus. 2. Turning to the terms of the Contract itself, there is little in the way of guidance to support Alamria’s claim that the parties intended that Oncor was an “affiliate” of Telcor for the purposes of binding Oncor to the Contract. Generally, an “affiliate” is defined as a “[c]ompany effectively controlled by another company. A branch, division, or subsidiary____ Corporations which are related as parent and subsidiary, characterized by identity of ownership of capital stock.” Black’s Law Dictionary 58 (6th ed. 1990). Even if this definition could be construed to support Alamria’s position, it is insufficient in its definiteness and authority to justify a holding that Oncor is bound to the Alamria/Telcor Contract. Moreover, Alamria has failed to cite and this court is unaware of, any cases indicating that the term “affiliate” is commonly used to describe the relationship between Telcor and Oncor. However, there is a sharp dispute of fact regarding what Switzer represented, if anything, to Enany regarding whether Oncor would be bound under the Contract. Because the term “affiliates” as used in this Contract is ambiguous, Alamria will be given an opportunity to prove, at an evidentiary hearing, that the parties manifested an intent for the term to" }, { "docid": "22712619", "title": "", "text": "Dictionary 1220 (11th ed. 2003); accord Webster’s Third New International Dictionary (defining “statutory rape” as “sexual intercourse with a female whether willing or unwilling who is below the age fixed by the applicable statute as the age of consent.”). Black’s Law Dictionary (9th ed. 2009) defines “statutory rape” as “[u]n-lawful sexual intercourse with a person under the age of consent (as defined by statute), regardless of whether it is against that person’s will.” (Emphasis added). These definitions do not set a uniform definition of the age of consent at sixteen. Moreover, the Black’s Law Dictionary definition states explicitly that the age of consent for the purposes of statutory rape is to be defined by statute. For these reasons, we conclude that the “generic, contemporary meaning” of “statutory rape” sets the age of consent as a person under the age of majority as defined by statute. Finally, we determine whether the elements of Rodriguez’s statute of conviction comport with the generic meaning of “sexual abuse of a minor” and “statutory rape.” Rodriguez was convicted of sexual assault of a child under Texas Penal Code § 22.011(a)(2) after engaging in sexual conduct with a sixteen-year-old victim when he was nineteen years of age. Section 22.011(a)(2) punishes any defendant who: (2) intentionally or knowingly: (A) causes the penetration of the anus or sexual organ of a child by any means; (B) causes the penetration of the mouth of a. child by the sexual organ of the actor; (C) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; (D) causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor; or (E)causes the mouth of a child to contact the anus or sexual organ of another person, including the actor. Tex. PeNAL Code § 22.011(a)(2). The Texas statute defines “child” as “a person younger than 17 years of age.” Id. at § 22.011(c)(1). Rodriguez does not challenge that these elements comport with the “generic, contemporary meaning” of “sexual” or “abuse.” Rather," }, { "docid": "13909524", "title": "", "text": "gross negligence where the jurisdiction has abolished the distinction between degrees of negligence and treats all negligence alike.”). Because Hawaii has not abolished the distinction between negligence and gross negligence, the parties could not waive liability for gross negligence under Hawaii law. See Cape Flattery Ltd. v. Titan Maritime LLC, 607 F.Supp.2d 1179, 1189 (D.Haw.2009) (explaining various definitions of gross negligence). . To the extent that Plaintiff attempts to create an issue regarding a conflict between NCsoft and NC Interactive, Inc., the Court rejects such an argument. See Opposition at 12 n. 4. The User Agreement (and the waiver contained therein) limits NC Interactive Inc.'s liability as well as that of its shareholders and affiliates. See Esber Declaration Exhibit 1 (User Declaration ¶ 12). Because NC Interactive Inc. is a wholly-owned subsidiary of NCsoft, the Court finds that NCsoft would qualify both as a shareholder and an affiliate. See Compl. ¶ 3 (alleging that NC Interactive Inc is a wholly owned subsidiary of NCsoft Corp.). Black's Law Dictionary defines an affiliate as a \"corporation that is related to another corporation by shareholdings or other means of control; a subsidiary, parent, or sibling corporation” Black's Law Dictionary 63 (8th Ed. 2004) Accordingly, there is no conflict between NCsoft and NC Interactive Inc." }, { "docid": "23084934", "title": "", "text": "presence of two or more entities is consistent with the ordinary usage of the word as evidenced by standard dictionary definitions of “affiliate” (as a noun and verb) and “affiliated.” “In order to ascertain the established meaning of a term ..., it is appropriate to consult dictionaries.” Pesquera Mares, 266 F.3d at 1382 (internal quotation marks and citation omitted); see also MCI Telecomm., 512 U.S. at 225, 114 S.Ct. 2223. Every dictionary we have consulted defines these words such that the concept of a person or organization affiliating with itself is excluded or, at the very least, highly implausible. For example, the Oxford English Dictionary (2d ed.1991), defines “affiliated” as “[a]dopted as a child or fixed in paternity. Usually figlmatwe]. United in a dependent relation, as the branches of a society to the central organization.” Id. at 217. Echoing the definition of “affiliated” given in § 1677(33), Black’s Law Dictionary (7th ed.1999), defines the noun “affiliate” as “[a] corporation that is related to another corporation by shareholdings or other means of control; a subsidiary, parent, or sibling corporation.” Id. at 59 (emphasis added). See also Webster’s Third New International Dictionary 35 (1993) (defining the verb “affiliate” primarily as “to attach as a member or branch”). Each of these definitions, in turn, draws on the Latin antecedents of the term “affiliate” or “affiliated,” namely, filius, meaning “son,” and affiliare, meaning “to adopt as a son.” See, e.g., id.; see also Oxford Latin Dictionary 701 (1996); cf. MCI Telecomm., 512 U.S. at 225, 114 S.Ct. 2223 (examining the Latin root of the word “modify”). As these roots make clear, if we use the word “affiliate” in its ordinary sense, an organization can no more affiliate with itself than a man can adopt himself as his own son. In short, the ordinary definition of “affiliated” cannot be stretched to accommodate Commerce’s interpretation of that term as used in § 1675(a)(4), and “[w]e find nothing in the statute to suggest that Congress intended to depart from the ordinary definition” of that term. Pesquera Mares, 266 F.3d at 1383. Second, as the Supreme Court has" }, { "docid": "22305637", "title": "", "text": "(9th Cir.2008) (citing Metrophones Telecomms., Inc. v. Global Crossing Telecomms., Inc., 423 F.3d 1056, 1067 (9th Cir.2005)). Because the TCPA is silent to the issue at hand, we must defer to the agency so long as the agency’s interpretation “is based on a permissible construction of the statute.” Chevron, 467 U.S. at 843, 104 S.Ct. 2778. An agency’s interpretation of a statute is permissible, unless “arbitrary, capricious, or manifestly contrary to the statute.” Id. at 844, 104 S.Ct. 2778. The FCC’s interpretation of 47 U.S.C. § 227(b)(1)(A) is consistent with the dictionary’s definition of call in that it is defined as “to communicate with or try to get into communication with a person by telephone.” It is undisputed that text messaging is a form of communication used primarily between telephones. The FCC’s interpretation is also consistent with the purpose of the TCPA — to protect the privacy interests of telephone subscribers. Further, nothing in the record indicates that such an interpretation is “arbitrary, capricious, or manifestly contrary to the statute.” Accordingly, we find that the FCC’s interpretation of the TCPA is reasonable, and therefore afford it deference to hold that a text message is a “call” within the TCPA. C. Express Consent Finally, the district court erred in granting summary judgment based upon Satterfield expressly consenting to receiving the message. While the TCPA exempts those calls “made with the prior express consent of the called party,” 47 U.S.C. § 227(b)(1)(A), no express consent was given in this case. Express consent is “[c]onsent that is clearly and unmistakably stated.” Black’s Law Dictionary 323 (8th ed.2004). Satterfield solely consented to receiving promotional material from Nextones or their affiliates and brands. The term “affiliate” carries its own, independent legal significance. “Affiliate refers to a ‘corporation that is related to another corporation by shareholdings or other means of control....’” Delaware Ins. Guar. Ass’n v. Christiana Care Health Servs., Inc., 892 A.2d 1073, 1077 (Del.2006) (quoting Black’s Law Dictionary 59 (7th ed.1999)). The plain and ordinary meaning of “affiliate” supports this definition as “a company effectively controlled by another or associated with others under common" }, { "docid": "23260117", "title": "", "text": "ref’d n.r.e.) (listing Texas cases). Consequently, it is possible for an attorney to be liable for constructive fraud even though the attorney operated completely in good faith during the entire transaction. Under the liberal interpretation of pleadings standard which the Texas Supreme Court has directed us to apply in determining an insurer’s duty to defend, we must read Clifton’s constructive fraud allegations against the Lawyers in light of this possibility. The question which we must decide, therefore, is whether the common, ordinary meaning of the term fraud — as it appears in the exclusion provision of the insurance policy — includes constructive as well as actual fraud. After carefully considering the question, we conclude that it does not. For help in determing the common, ordinary meaning of the term “fraud,” we have consulted several dictionaries. A sampling of the definitions we have uncovered leads us to the conclusion that the term “fraud” is generally understood to carry with it the connotation of a wrongful intent. Webster’s defines “fraud” as “the intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him, or to surrender a legal right.” Webster’s New International Dictionary 1003 (2d ed. unabridged 1956). Similarly, “fraud” is de fined elsewhere as “[a] deception deliberately practiced in order to secure unfair or unlawful gain.” American Heritage Dictionary 531 (2d college ed. 1982). Even Black’s Law Dictionary, when defining “fraud” generally, gives the definition of actual fraud — which includes the element of wrongful intent. See Black’s Law Dictionary 594 (5th ed. 1979); see also Philipp Bros., Inc. v. Oil Country Specialists, Ltd., 709 S.W.2d 262, 264 (Tex.App.—Houston [1st Dist.] 1986, writ ref’d n.r.e.) (defining “fraud” as a false representation of material fact made with intent to induce the listener to act upon it). It is only when explaining the distinction between actual and constructive fraud that the dictionary defines the latter. See Black’s Law Dictionary 595 (5th ed. 1979). We are also aided in our search for the common meaning of the term by the language of" }, { "docid": "3990001", "title": "", "text": "the related term \"affiliate company,” which is defined as a company \"controlled” by another company. Black’s Law Dictionary 58 (6th ed. 1990). This focus on control is important for purposes of securi ties law and is the dispositive inquiry in determining whether or not an entity is an affiliate. . The quoted definition is for the noun form of ''control.' Black’s Law Dictionary also contains a definition for the verb form that is substantially similar to the noun definition, but speaks in slightly more general language. Accordingly, ''control” as a verb means: \"1. To exercise power or influence over <the judge controlled the proceedings;-. 2. To regulate or govern <by law, the budget office controls expenditures >. 3. To have a controlling interest in <the five shareholders controlled the company>.” Black's Law Dictionary 378 (9th ed. 2009). . We note that the Plan participants, as the plaintiffs in Howell, necessarily took the position that the Committee is an ERISA fiduciary. Howell v. Motorola, Inc., 633 F.3d 552, 562-64 (7th Cir.2011). This is an implicit acknowledgment that the Committee exercised control over the Plan. The question whether Motorola controlled the Plan is somewhat more complicated. In a Rule 28(j) letter submitted after Howell was decided, the Plan asserted that the opinion in Howell requires that we conclude it did not. More specifically, the Plan cites this statement from Howell: \"[T]here is no evidence in this record that Motorola did anything more than appoint Committee members to administer the Plan. No evidence suggests that the company exercised de facto control over Plan decisions through those Committee members.” Id. at 562-63. The Plan argues that this passage compels the conclusion that Motorola's control over the Committee was insufficient to make the Plan an affiliate. We disagree. This part of Howell must be read in context of the question before the court in Howell. The question there was whether Motorola and the other defendants were ERISA fiduciaries for purposes of the participants' breach-of-fiduciary-duty claims. Here, in contrast, the Plan's status as an affiliate of Motorola turns on the question of control but does not" }, { "docid": "22305638", "title": "", "text": "FCC’s interpretation of the TCPA is reasonable, and therefore afford it deference to hold that a text message is a “call” within the TCPA. C. Express Consent Finally, the district court erred in granting summary judgment based upon Satterfield expressly consenting to receiving the message. While the TCPA exempts those calls “made with the prior express consent of the called party,” 47 U.S.C. § 227(b)(1)(A), no express consent was given in this case. Express consent is “[c]onsent that is clearly and unmistakably stated.” Black’s Law Dictionary 323 (8th ed.2004). Satterfield solely consented to receiving promotional material from Nextones or their affiliates and brands. The term “affiliate” carries its own, independent legal significance. “Affiliate refers to a ‘corporation that is related to another corporation by shareholdings or other means of control....’” Delaware Ins. Guar. Ass’n v. Christiana Care Health Servs., Inc., 892 A.2d 1073, 1077 (Del.2006) (quoting Black’s Law Dictionary 59 (7th ed.1999)). The plain and ordinary meaning of “affiliate” supports this definition as “a company effectively controlled by another or associated with others under common ownership or control.” Webster’s Third New International Dictionary 35 (2002). The record confirms that Nextones neither owns nor controls Simon & Schuster, nor can Nextones be considered a Simon & Schuster subsidiary. In fact, the record shows no direct contractual relationship between Nextones and Simon & Schuster. The district court also erred in granting summary judgment based on Satterfield’s consent to receive promotional materials by Nextones’ brands. The district court found there was “no dispute of fact that the promotional text message at issue was identified with a Nextones brand.” The district court’s conclusion is based solely on the fact that the message contained the phrase “PwdbyNexton.” We do not agree. Under this logic, any company sending a text message could simply include “PwdbyNexton” and it would be considered a “brand” of Nextones. Brand is not defined in the contract, therefore we look to its plain and ordinary meaning. Brand is commonly defined as “a class of goods identified as being the product of a single firm or manufacturer.” Webster’s Third New International Dictionary 268" } ]

[ { "docid": "12682726", "title": "", "text": "AffiRM the remainder of the decision. . The district court entered judgment on July 16, 1993, and amended this judgment on August 3, 1993, prior to both this court’s decision in Mojica v. Gannett Co., 7 F.3d 552 (7th Cir.1993) (en banc) (decided on September 27, 1993) and the Supreme Court’s decision in Landgraf v. USI Film Products, - U.S. -, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) (establishing that the 1991 Act’s jury trial provisions do not apply retroactively). . Indeed, while it may have been the case, it cannot be conclusively determined from the record that the Magistrate Judge notified the parties prior to trial that he intended to convene an advisory jury under Rule 39(c). In this regard, we acknowledge the approach of other circuits which indicate that the failure to provide such notice is reversible error, as the parties may have engaged in a different trial strategy had they known of the jury's advisory capacity. See Thompson v. Parkes, 963 F.2d 885, 888 (6th Cir.1992) (examining the plain language of the rule and policy considerations of trial tactics and concluding \"the rule requires that the court’s initiative in ordering a trial to an advisory jury must occur, and the parties be made aware of it, before the case is submitted”); Bereda v. Picker ing Creek Indus. Park, Inc., 865 F.2d 49, 53 (3d Cir.1989) (requiring a district court to \"notify both sides of a jury's advisory status no later than the time at which the jury selection has begun”); Pradier v. Elespuru, 641 F.2d 808, 811 (9th Cir.1981) (recognizing that \"there are frequently significant tactical differences in presenting a case to a court, as opposed to a jury. The parties are entitled to know at the outset of the trial whether the decision will be made by the judge or the jury”); cf. Merex A.G. v. Fairchild Weston Sys., Inc., 29 F.3d 821, 827 (2d Cir.1994) (recognizing \"that such notice is preferable,” rejecting a per se rule of notice, and requiring instead that the complaining party show \"demonstrable prejudice”). Since this issue is not directly before" } ]

[ { "docid": "21550163", "title": "", "text": "submit an equitable issue to an advisory jury for a binding verdict. See Mallory v. Citizens Utilities Co., 342 F.2d 796, 797-98 (2d Cir.1965) (error to enter judgment upon advisory jury’s verdict in equitable action for rescission of contract; court must make independent findings of fact and conclusions of law). Merex cites Thompson v. Parkes, 963 F.2d 885 (6th Cir.1992), Bereda v. Pickering Creek Industrial Park, Inc., 865 F.2d 49 (3d Cir.1989), and AMF Tuboscope, Inc. v. Cunningham, 352 F.2d 150 (10th Cir.1965), for the proposition that a trial court abuses its discretion whenever it declares the jury advisory after the start of trial. Although there are dicta in each case arguably supporting such a broad rule of law, the reasoning of these decisions does not suggest a similar result in this case. The Sixth Circuit’s decision in Thompson, for example, is starkly different from our case. There, the trial court declared the jury advisory one week after the jury had re turned its verdict. See Thompson, 963 F.2d at 887. Reversing, the court proffered at least three reasons why waiting that long constituted an abuse of discretion in that case. First, the court reasoned that to sanction the practice would permit judges to exercise “veto power” over jury verdicts with which they disagree. Id. at 889. Second, the court observed that Rule 39(e) permits the parties to stipulate to a jury trial even if the claims were not triable as of right by a jury. (In that case, both sides had requested a jury trial, and neither side had moved to strike the jury demand or for a directed verdict. Id.) Finally, the court believed that fundamental fairness and judicial economy required notice of an advisory jury in advance of trial, so that counsel “may prepare a case appropriate to the trier of fact.” Id. at 889; see also Hildebrand v. Board of Trustees, 607 F.2d 705, 710 (6th Cir.1979) (“Any good trial lawyer will testify that there are significant tactical differences in presenting and arguing a case to a jury as opposed to a judge.”). While we agree" }, { "docid": "414390", "title": "", "text": "parties be made aware of it, before the case is submitted. That did not occur in this case. Only a passing reference was made in connection with a discussion on election of remedies. The court’s initiative here occurred after the verdict. The other directive of Rule 39(c) permits the court, with the consent of the parties, to “order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right.” In this case, the parties agreed and the court ordered on several occasions that the matter be tried as a jury case. No mention was made of an advisory jury during trial preparation. In such a case, whether or not the issues were equitable in nature, the verdict of the jury must be treated as if the right had existed and it is beyond the power of the district court to set the verdict aside on the theory it was advisory. This court has addressed the parameters of the use of advisory juries pursuant to Rule 39 in Hildebrand v. Board of Trustees, 607 F.2d 705 (6th Cir.1979), which supports our conclusions here. In Hildebrand, a professor’s action against a state university for unconstitutional discharge was tried to a jury. After both parties had rested, the trial court raised the issue of the plaintiff’s entitlement to a jury trial, and announced that the jury’s findings would be only advisory. Although the jury’s subsequent answers to interrogatories favored reinstatement of the plaintiff, the district court issued a decision for the defendant. This court reversed, in reliance upon “considerations of fundamental fairness and judicial economy,” stating: Any good trial lawyer will testify that there are significant tactical differences in presenting and arguing a case to a jury as opposed to a judge. To convert a trial from a jury trial to a bench trial (or vice-versa) in the middle of the proceedings is to interfere with counsel’s presentation of their case and, quite possibly, to prejudice one side or the other. Further, it is a waste of the additional time and money" }, { "docid": "414391", "title": "", "text": "Rule 39 in Hildebrand v. Board of Trustees, 607 F.2d 705 (6th Cir.1979), which supports our conclusions here. In Hildebrand, a professor’s action against a state university for unconstitutional discharge was tried to a jury. After both parties had rested, the trial court raised the issue of the plaintiff’s entitlement to a jury trial, and announced that the jury’s findings would be only advisory. Although the jury’s subsequent answers to interrogatories favored reinstatement of the plaintiff, the district court issued a decision for the defendant. This court reversed, in reliance upon “considerations of fundamental fairness and judicial economy,” stating: Any good trial lawyer will testify that there are significant tactical differences in presenting and arguing a case to a jury as opposed to a judge. To convert a trial from a jury trial to a bench trial (or vice-versa) in the middle of the proceedings is to interfere with counsel’s presentation of their case and, quite possibly, to prejudice one side or the other. Further, it is a waste of the additional time and money which is inherent to a jury trial. Id. at 710. The court noted a probable right to a jury trial, but held in the alternative: Even if we were to adopt the district court’s view, we would have to reverse. In this case both sides requested a jury trial. Neither side ever moved to strike the jury demands. Indeed, neither side ever moved for a directed verdict. Since both parties apparently wanted the jury to decide this case and since the jury had heard both sides’ presentation, the district judge’s conduct in sua sponte tak ing the case away from the jury is particularly difficult to understand. Even if the court was correct that no jury trial right existed in this case, F.R.Civ.Pro. Rule 39(c) permits both sides to stipulate to a jury trial. To be sure, a district court does not have to go along with the stipulation, but once that occurs, it does not have unbridled discretion to change its mind. In AMF Tuboscope, Inc. v. Cunningham, 352 F.2d 150 (10th Cir.1965), the" }, { "docid": "20792952", "title": "", "text": "1069-70, 93 L.Ed. 1347 (1949); Burns, 53 F.3d at 1240; see also Beacon Theatres, Inc. v. Westerner, 359 U.S. 500, 508, 79 S.Ct. 948, 955, 3 L.Ed.2d 988 (1959) (stating that where related legal and equitable claims are brought in same proceeding, jury must be allowed to decide legal claims first; then court can fashion equitable relief consistent with jury’s findings). We agree with Goodgame and Brown that Rule 39(c) plainly does not apply to claims, like their § 1981 claims, that are triable by jury as a matter of right. See Lincoln v. Board of Regents, 697 F.2d 928, 934 (11th Cir.), cert. denied, 464 U.S. 826, 104 S.Ct. 97, 78 L.Ed.2d 102 (1983). It is axiomatic in such cases that a trial court cannot disregard a jury’s verdict and substitute its own findings in deciding claims; otherwise, the court could effectively subsume the jury’s function and deprive litigants of their right to trial by jury. Cf. Beacon Theatres, 359 U.S. at 506-10, 79 S.Ct. at 954-56 (discussing the principle that use of discretion by a court to let equitable claims precede legal ones, possibly infringing the right to jury trial, requires at least the danger of irreparable harm or inadequacy of legal remedies). When an advisory jury is empaneled under Rule 39(c), “[i]ts findings of fact are not binding on the trial court.” Wilson v. City of Aliceville, 779 F.2d 631, 635-36 (11th Cir.1986). Just the opposite must be true when a jury is demanded as a matter of right by a party. The trial court, in an attempt to salvage the jury’s verdicts, set them aside, stated that it would treat the jury as “advisory,” and asked the parties to submit proposed findings of fact consistent with the jury’s findings. (R. 2 at 45.) This course of action was insufficient to protect Goodgame and Brown’s right to a jury trial on their § 1981 claims. Goodgame and Brown contend that the court should have granted them a new trial and allowed a properly instructed jury to decide if the promotions at issue involved new and distinct relationships" }, { "docid": "76851", "title": "", "text": "the issues or what they would have done differently had the case been a bench trial. Indeed, it is likely that counsel would have prepared less for a bench trial than for a jury trial. A new trial would be a waste of judicial resources. The Court has heard the evidence, reviewed the record and has made an independent determination of the issues. Allen, 375 F.Supp.2d at 806. “Rule 39(c) does not expressly require advance notice to the parties of the court’s intention to treat the jury as advisory,” although such notice is preferable. Ind. Lumbermens Mut. Ins. Co. v. Timberland Pallet & Lumber Co., 195 F.3d 368, 375 (8th Cir.1999). Moreover, “failure to give advance notice alone, absent some demonstrable prejudice to the complaining party, would not be a basis for reversal.” Id. The district court recognized its error in sua sponte ordering a jury trial, vacated the jury verdict, and treated the jury as advisory. The district court then made its own findings of fact and conclusions of law. TSI has not shown more than a mere failure by the district court to give more advance notice of the advisory jury trial and the resulting pressure and inconvenience of hurriedly preparing for a jury trial on three-days’ notice. TSI fails to show it was prejudiced by the district court’s decision to proceed with an advisory jury, and therefore is not entitled to a new trial. D. Damages 1. Back Pay TSI claims the district court erred in calculating Allen’s back wages. TSI argues Allen’s back wages award should be reduced by $2,950.00, because the district court had no basis for calculating Allen’s manager pay at $450.00 a week, given the testimony established most managers made $400.00 per week. TSI also asserts the district court made mathematical errors in calculating Allen’s lost wages for five weeks in 2002. We review the district court’s award of back pay for clear error. Ledbetter v. Alltel Corp. Serv., Inc., 437 F.3d 717, 724 (8th Cir.2006). In awarding Allen back pay the district court stated: Allen is entitled to back pay representing the" }, { "docid": "5443046", "title": "", "text": "the title. The Rutledge case thus dealt with a situation in which the demand, itself, had not been made. This case deals with a situation in which the demand was made in accordance with Rule 38(b) as interpreted by the local rule, but the additional requirement of placing a notation in the title was not met. The demand for a jury trial having been properly made under Fed.R.Civ.P. 38(b), the failure to fulfill an additional requirement of a local rule to place a notation to that effect in the title cannot constitute a waiver of a trial by jury. Because the right to a jury trial is a fundamental right guaranteed to our citizenry by the Constitution, courts should indulge every reasonable presumption against waiver. See Aetna Insurance Co. v. Kennedy, 301 U.S. 389, 393, 57 S.Ct. 809, 811, 81 L.Ed. 1177 (1937); Local 783, Allied Industrial Workers v. General Electric Co., 471 F.2d 751, 756 (6th Cir.), cert. denied, 414 U.S. 822, 94 S.Ct. 120, 38 L.Ed.2d 55 (1973); Heyman v. Kline, 456 F.2d 123, 129 (2d Cir. 1972), cert. denied, 409 U.S. 847, 93 S.Ct. 53, 34 L.Ed.2d 88 (1972). This case must be remanded for retrial before a jury. The advisory jury verdict may not be substituted. The entire trial took place with the understanding that the jury’s verdict would be advisory only. There are frequently significant tactical differences in presenting a case to a court, as opposed to a jury. The parties are entitled to know at the outset of the trial whether the decision will be made by the judge or the jury. See Hildebrand v. Board of Trustees, 607 F.2d 705, 710-12 (6th Cir. 1979). Moreover, after a trial by jury, the district judge may order a new trial under Fed.R.Civ.P. 59 on the grounds that the verdict is contrary to the weight of the evidence. See 11 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2806 (1973). It appears the district judge would obviously so rule in this case. In these circumstances, the case must be reversed and remanded for" }, { "docid": "12664126", "title": "", "text": "injunction. . Compensatory damages under the 1991 Act do not include back pay. 42 U.S.C. § 1981a(b)(l). Dombeck was not entitled to back pay in any event because her employment was never interrupted as a result of Carpenter's harassment. . It is clear from the record that the district court never independently found a violation of Title VII, although the court's post-trial comments generally indicate its agreement with the jury’s verdict. For instance, the court found \"overwhelming” evidence to support the verdict when it denied MVC’s Fed.R.Civ.P. 50(b) motion for judgment as a matter of law. Dombeck, 823 F.Supp. at 1478-79. . In finding that the district court is not required to conduct an entirely new bench trial below, we do not ignore MVC’s contention that it may have tried the case differently had it known that the district court and not the jury would be the finder of fact. It of course is preferable that the parties be aware beforehand whether the court or a jury will decide their case. See, e.g., Merex A.G. v. Fairchild Weston Sys., Inc., 29 F.3d 821, 827 (2d Cir.1994). Yet in reviewing a completed trial, we hesitate to hold that the lack of such notice is inherently prejudicial, particularly where MVC has failed to articulate in anything more than a cursory fashion how its trial strategy would have differed." }, { "docid": "21575907", "title": "", "text": "by a jury would effectively be advisory, as the district judge could always rule that the verdict was advisory if the judge did not agree with the jury’s verdict. We find apt the Sixth Circuit’s discussion of a similar issue in Hildebrand v. Board of Trustees, 607 F.2d 705 (6th Cir.1979): [Considerations of fundamental fairness and judicial economy militate against th[e] view [that it is proper to abort a jury trial and convert the proceedings into a bench trial under some circumstances]. Any good trial lawyer will testify that there are significant tactical differences in presenting and arguing a case to a jury as opposed to a judge. To convert a trial from a jury trial to a bench trial (or vice versa) in the middle of the proceedings is to interfere with counsel’s presentation of their case and, quite possibly, to prejudice one side or the other. Id. at 710. Cf. Pradier v. Elespuru, 641 F.2d 808, 811 (9th Cir.1981) (“There are frequently significant tactical differences in presenting a case to a court [with an advisory jury], as opposed to a jury. The parties are entitled to know at the outset of the trial whether the decision will be made by the judge or the jury.”). Because considerations of fairness to the litigants indicate that Rule 39(c) should not be interpreted to allow a district judge to rule a jury verdict advisory after the parties have begun to implement their trial plan, we hold that when the litigants have consented to a nonadvisory jury under Rule 39(c), a district court must notify both sides of a jury’s advisory status no later than the time at which the jury selection has begun. This interpretation of Rule 39(c) is consistent with its language, does not unduly limit the discretion of the district judge to reject a request by the litigants to try their case to a nonadvisory jury, and promotes fair judicial administration. The parties to the case will be able to proceed with trial with the knowledge of whether a jury or a judge assisted by an advisory jury will" }, { "docid": "21550149", "title": "", "text": "misgivings about dealing with the PRC, Fairchild consummated a direct sale to the PRC of two surveillance systems. The deal, of course, did not include Merex. When Fairchild refused to pay Merex for its prior services, Merex sued Fairchild in the district court, alleging an oral promise by Fairchild to pay Merex a commission on any direct sale to the PRC. Merex’s complaint sought damages under theories of breach of contract, quantum meruit, and promissory estoppel. The complaint also sought a declaration of Merex’s rights under the alleged commission agreement. Merex demanded a jury trial on all issues. The jury trial began on April 13, 1992. Following Merex’s case-in-chief, Judge Lowe granted, in part, Fairchild’s motion for judgment as a matter of law. See Fed.R.Civ.P. 50(a). Judge Lowe found that, without a writing, both Merex’s claims for breach of contract and quantum meruit were barred by New York’s Statute of Frauds. See Merex A.G. v. Fairchild Weston Systems, Inc., 810 F.Supp. 1356 (S.D.N.Y.1993). Judge Lowe also dismissed Merex’s claim for a declaratory judgment, and no issue is made of this. Characterizing the remaining promissory es-toppel claim as “equitable,” Judge Lowe then ruled that she would let it go to the jury, but only for an advisory verdict. Fed.R.Civ.P. 39(c). Merex, 810 F.Supp. at 1358 n. 2. After Fairchild completed its case, the case went to the advisory jury, which returned a verdict in favor of Merex on the promissory estoppel claim. Judge Lowe rejected the jury’s advice, however. After issuing findings of fact and conclusions of law, see Fed. R.Civ.P. 52(a), the court entered judgment for Fairchild, dismissing Merex’s complaint. Merex now appeals. DISCUSSION Merex raises a host of arguments on appeal; we find only one worthy of serious consideration. Merex challenges the district court’s decision to treat the verdict on its promissory estoppel claim as merely advisory. Merex believes that promissory estoppel is a legal claim, not an equitable one, and argues that the Seventh Amendment guaranteed Merex a jury trial on that issue. Alternatively, Merex argues that even if Merex was not entitled to a jury trial as" }, { "docid": "20792951", "title": "", "text": "a jury could determine whether the disputed promotions involved new and distinct relationships as required under “old” § 1981. Goodgame and Brown also contend that the trial court abused its discretion by overturning the jury award of punitive damages. IV. DISCUSSION A. The trial court’s treatment of the jury verdicts Goodgame and Brown contend that the trial court erred by treating the jury as advisoiy under Fed.R.Civ.P. 39(c). Rule 39(c), they assert, does not apply to their § 1981 claims at all, since they had a right to a jury trial with regard to those claims irrespective of whether the 1991 Act applied. Goodgame and Brown argue that the trial court should have allowed a properly instructed jury to reexamine their § 1981 claims. We review the trial court’s application of Rule 39(c) de novo. Burns v. Lawther, 53 F.3d 1237, 1240 (11th Cir.1995). Our scrutiny is “most exacting” where, as here, an appellant’s right to a jury trial is implicated. City of Morgantown v. Royal Ins. Co., 337 U.S. 254, 258, 69 S.Ct. 1067, 1069-70, 93 L.Ed. 1347 (1949); Burns, 53 F.3d at 1240; see also Beacon Theatres, Inc. v. Westerner, 359 U.S. 500, 508, 79 S.Ct. 948, 955, 3 L.Ed.2d 988 (1959) (stating that where related legal and equitable claims are brought in same proceeding, jury must be allowed to decide legal claims first; then court can fashion equitable relief consistent with jury’s findings). We agree with Goodgame and Brown that Rule 39(c) plainly does not apply to claims, like their § 1981 claims, that are triable by jury as a matter of right. See Lincoln v. Board of Regents, 697 F.2d 928, 934 (11th Cir.), cert. denied, 464 U.S. 826, 104 S.Ct. 97, 78 L.Ed.2d 102 (1983). It is axiomatic in such cases that a trial court cannot disregard a jury’s verdict and substitute its own findings in deciding claims; otherwise, the court could effectively subsume the jury’s function and deprive litigants of their right to trial by jury. Cf. Beacon Theatres, 359 U.S. at 506-10, 79 S.Ct. at 954-56 (discussing the principle that use of discretion" }, { "docid": "10567355", "title": "", "text": "“[y]ou decide at the end of the day what is the reality and what are the facts, absolutely. So if anything I say is not consistent with your memory, your memory goes.” Second, the prosecutor’s allegedly prejudicial comments all related to the mail fraud conspiracy charge. We fail to see how comments relating solely to the mail fraud evidence, even if improper, caused Jewell any prejudice when the jury acquitted him of that conduct. In addition, our review in Holmes was not limited to plain error review because the improper comments were objected to at trial, and the Holmes court found the prosecutor’s remarks warranted a reversal only after determining the jury’s verdict could have been affected by “the exclusion of admissible testimony and the relative weakness of the government’s ease[.]” Holmes, 413 F.3d at 775. Here, the government’s case against Jewell was relatively strong, and we have not identified any improperly excluded testimony that may have affected the jury’s verdict. Reviewing for plain error, we do not find any basis for reversing Jewell’s conviction due to the prosecutor’s closing arguments. M Jewell next contends the cumulative effect of trial errors denied him a fair trial. We will not overturn a conviction based upon the cumulative effect of trial errors unless there is substantial prejudice to the defendant. United States v. Anwar, 428 F.3d 1102, 1115 (8th Cir.2005); see also United States v. Steffen, 641 F.2d 591, 598 (8th Cir.1981). Jewell, however, has not shown any prejudice resulted from trial errors, let alone substantial prejudice. The only trial error we have identified was the district court’s failure to allow witness Hamner to give an opinion regarding witness Duree’s character for untruthfulness, and we held the error was harmless because our review of the record as a whole indicated it did not affect the jury’s verdict. Thus, there is no basis for overturning Jewell’s conviction due to the cumulative effect of trial errors. N Finally, Jewell contends the district court erred when it denied his motion for a new trial. We review the denial of a motion for a new trial" }, { "docid": "16678824", "title": "", "text": "damages found by the jury are inadequate and the Court should not be influenced by the amount. The Court disagrees that a new trial is warranted. The eases relied upon by defendants are inapposite. In those cases, the parties had consented to a trial by jury, although they were not entitled to jury trial as a matter of right. The court, after the jury rendered a verdict, declared the jury to be advisory. See Bereda v. Pickering Creek Indus. Park, 865 F.2d 49, 53 (3rd Cir.1989) (where litigants have consented to nonadvisory jury trial, court must notify parties of jury’s advisory status no later than time when jury selection has begun); Hildebrand v. Bd. of Trustees of Michigan State Univ., 607 F.2d 705, 710 (6th Cir.1979) (district court erred in withdrawing case from jury after both sides requested jury trial and allowing jury to answer certain interrogatories in an advisory capacity only). Here, neither party requested a jury trial. Counsel for the parties were at least prepared for a trial to the Court when the Court advised them that the case would be tried to a jury. The parties have not indicated how they were prejudiced by the Court how deciding the issues or what they would have done differently had the case been a bench trial. Indeed, it is likely that counsel would have prepared less for a bench trial than for a jury trial. A new trial would be a waste of judicial resources. The Court has heard the evidence, reviewed the record and has made an independent determination of the issues. Defendants further argue that they are entitled to judgment as a matter of law as a sanction for Allen’s alleged repeated perjury. The Court is not persuaded that Allen failed to disclose or presented false testimony regarding matters material to the lawsuit. Although Allen did not state that she was terminated from her ADC job in her application for a job with TSI, the omission was not material. TSI did not even rely on applications when hiring people. Furthermore, Allen’s explanation of her termination from the" }, { "docid": "7649222", "title": "", "text": "Co., 386 F.2d 659 (8th Cir. 1967) (Court examined underlying contract and held that the issue presented was equitable. The court concluded that “[t]he question at hand must be resolved not merely by the form of the complaint but by an appraisal of the basic nature of the claims or issues presented, and the type of relief sought”) Cf. King v. United Benefit Fire Ins. Co., 377 F.2d 728, 731 (10th Cir. 1967) (pre-trial conference an “opportune time” to consider a jury demand.) See also Ross v. Bernhard, supra, 396 U.S. at 538, 90 S.Ct. at 738 (“The Seventh Amendment question depends on the nature of the issue to be tried rather than the character of the overall action.”); Dairy Queen Inc. v. Wood, supra, 369 U.S. at 478, 82 S.Ct. at 900 (“[T]he constitutional right to trial by jury cannot be made to depend upon the choice of words used in the pleadings”). See generally 9 C. Wright & A. Miller, Federal Practice & Procedure § 2304 (1971). In this case, however, the district court let the case be tried before a jury and then withdrew it from them. His conclusion that the damages claims were frivolous was based on the testimony at trial. In effect, the district court held that if damages claims cannot survive a motion for directed verdict, then it is proper to abort a jury trial and convert the proceedings into a bench trial. We think that considerations of fundamental fairness and judicial economy militate against this view. Any good trial lawyer will testify that there are significant tactical differences in presenting and arguing a case to a jury as opposed to a judge. To convert a trial from a jury trial to a bench trial (or vice-versa) in the middle of the proceedings is to interfere with counsel’s presentation of their case and, quite possibly, to prejudice one side or the other. Further, it is a waste of the additional time and money which is inherent to a jury trial. Cf. Simko v. C&C Marine Maintenance Co., 594 F.2d 960, 965-66 (3d Cir. 1979)." }, { "docid": "76850", "title": "", "text": "a bench trial. TSI asserts it hurriedly prepared jury instructions, voir dire, new opening and closing statements, and it had to prepare exhibits for presentation to the jury. TSI submits it would never have altered its presentations and arguments had the trial remained a bench trial. Therefore, TSI maintains it was prejudiced and a new trial is warranted. The district court based its decision to call an advisory jury on Fed.R.Civ.P. 39. Rule 39(c) states: “In all actions not triable of right by a jury the court upon motion or of its own initiative may try any issue with an advisory jury.” In denying TSI’s motion for a new trial based on the district courts alleged error in ordering a jury trial, the district court explained: Here, neither party requested a jury trial. Counsel for the parties were at least prepared for a trial to the Court when the Court advised them that the case would be tried to a jury. The parties have not indicated how they were prejudiced by the Court ... deciding the issues or what they would have done differently had the case been a bench trial. Indeed, it is likely that counsel would have prepared less for a bench trial than for a jury trial. A new trial would be a waste of judicial resources. The Court has heard the evidence, reviewed the record and has made an independent determination of the issues. Allen, 375 F.Supp.2d at 806. “Rule 39(c) does not expressly require advance notice to the parties of the court’s intention to treat the jury as advisory,” although such notice is preferable. Ind. Lumbermens Mut. Ins. Co. v. Timberland Pallet & Lumber Co., 195 F.3d 368, 375 (8th Cir.1999). Moreover, “failure to give advance notice alone, absent some demonstrable prejudice to the complaining party, would not be a basis for reversal.” Id. The district court recognized its error in sua sponte ordering a jury trial, vacated the jury verdict, and treated the jury as advisory. The district court then made its own findings of fact and conclusions of law. TSI has not shown" }, { "docid": "21550162", "title": "", "text": "estoppel] as equitable in nature, to be tried by the court with or without an advisory jury as the court elected.”). II. Abuse of Discretion under Rule 39(c) Relying exclusively on out-of-circuit authority, Merex alternatively argues that, even if it was not entitled to a jury trial, the trial court committed reversible error by declaring the jury advisory after the trial had actually started. We do not read Rule 39(c), or the cases relied upon by Merex, to compel such a conclusion. Rule 39(c) provides that “[i]n all actions not triable of right by a jury the court upon motion or of its own initiative may try any issue with an advisory jury....” After the breach of contract, quantum meruit and declaratory judgment claims were dismissed, the only claim surviving in the case was not “triable of right by a jury.” The court “of its own initiative” had the right to try the remaining issue with an advisory jury. Indeed, absent the consent of the parties, it would be highly questionable for a court to submit an equitable issue to an advisory jury for a binding verdict. See Mallory v. Citizens Utilities Co., 342 F.2d 796, 797-98 (2d Cir.1965) (error to enter judgment upon advisory jury’s verdict in equitable action for rescission of contract; court must make independent findings of fact and conclusions of law). Merex cites Thompson v. Parkes, 963 F.2d 885 (6th Cir.1992), Bereda v. Pickering Creek Industrial Park, Inc., 865 F.2d 49 (3d Cir.1989), and AMF Tuboscope, Inc. v. Cunningham, 352 F.2d 150 (10th Cir.1965), for the proposition that a trial court abuses its discretion whenever it declares the jury advisory after the start of trial. Although there are dicta in each case arguably supporting such a broad rule of law, the reasoning of these decisions does not suggest a similar result in this case. The Sixth Circuit’s decision in Thompson, for example, is starkly different from our case. There, the trial court declared the jury advisory one week after the jury had re turned its verdict. See Thompson, 963 F.2d at 887. Reversing, the court proffered" }, { "docid": "21550165", "title": "", "text": "that the foregoing considerations should inform the trial court’s discretion under Rule 39(c), we do not believe Judge Lowe committed reversible error on the facts of this case. First, and most significantly, Judge Lowe did not wait until the verdict was returned before deciding that the verdict would be advisory. Accordingly, there was no danger that the trial judge would veto the jury’s verdict. Cf. Thompson, 963 F.2d at 888 (court declared jury advisory after verdict); Bereda, 865 F.2d at 50 (same). Nor do we read Rule 39(c)’s provision for “trial by consent” to mandate the court’s acceptance of the jury’s verdict in this case. Rule 39(c) provides that the court, “with the consent of both parties, may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right.” Fed.R.Civ.P. 39(c) (emphasis added). Thus, when both parties consent, Rule 39(c) invests the trial court with the discretion — but not the duty — to submit an equitable claim to the jury for a binding verdict. While the litigants are free to request a jury trial on an equitable claim, they cannot impose such a trial on an unwilling court. See 5 James Wm. Moore, et al., Moore’s Federal Practice ¶ 39.11 (2d ed. 1993) (“Thus in private litigation the court and the parties can agree to try equitable actions to a jury whose verdict will have the effect of a common law verdict.”) (emphasis in original). Accordingly, even if we were to accept Merex’s argument that Fairchild consented to Merex’s demand for a jury trial of its promissory estoppel claim, such consent would not divest the trial judge of her discretion to decide the equitable issue. Finally, although Rule 39(e) does not expressly require advance notice to the parties of the court’s intention to treat the jury as advisory, we agree that such notice is preferable. In the absence of an express statutory mandate, however, we are not inclined to reverse on this basis alone, at least absent some demonstrable prejudice to the complaining party. Given the minimal" }, { "docid": "7649223", "title": "", "text": "court let the case be tried before a jury and then withdrew it from them. His conclusion that the damages claims were frivolous was based on the testimony at trial. In effect, the district court held that if damages claims cannot survive a motion for directed verdict, then it is proper to abort a jury trial and convert the proceedings into a bench trial. We think that considerations of fundamental fairness and judicial economy militate against this view. Any good trial lawyer will testify that there are significant tactical differences in presenting and arguing a case to a jury as opposed to a judge. To convert a trial from a jury trial to a bench trial (or vice-versa) in the middle of the proceedings is to interfere with counsel’s presentation of their case and, quite possibly, to prejudice one side or the other. Further, it is a waste of the additional time and money which is inherent to a jury trial. Cf. Simko v. C&C Marine Maintenance Co., 594 F.2d 960, 965-66 (3d Cir. 1979). But see Mahramas v. American Export Isbrandtsen Lines, Inc., 475 F.2d 165, 172-73 (2d Cir. 1973). B. Even if we were to adopt the district court’s view, we would have to reverse. In this case both sides requested a jury trial. Neither side ever moved to strike the jury demands. Indeed, neither side ever moved for a directed verdict. Since both parties apparently wanted the jury to decide this case and since the jury had heard both sides’ presentation, the district judge’s conduct in sua sponte taking the case away from the jury is particularly difficult to understand. Even if the court was correct that no jury trial right existed in this case, F.R.Civ.Pro. Rule 39(c)2 **** permits both sides to stipulate to a jury trial. To be sure, a district court does not have to go along with the stipulation, but once that occurs, it does not have unbridled discretion to change its mind. In AMF Tuboscope, Inc. v. Cunningham, 352 F.2d 150 (10th Cir. 1965), the district court approved a jury trial stipulation," }, { "docid": "21575906", "title": "", "text": "“the same effect as if trial by jury had been a matter of right.” The language of Rule 39(c) suggests that the district court may rule, in a case not triable by a jury as a matter of right, that it will treat the jury’s verdict as advisory even though the litigants have indicated that they would prefer a nonadvi-sory jury verdict: Rule 39(c) states that the court “may” order a trial with a nonadviso-ry jury verdict if each party has consented. The only reasonable construction of this provision, however, is that the district court does not have complete discretion in deciding when it may make this ruling. Were a district judge able to indicate that it would treat the jury’s verdict as advisory after the jury had returned its verdict, as in the instant case, the part of Rule 39(c) allowing for a nonadvisory jury in cases not triable of right by a jury would be effectively excised from the Rule in such a case. All jury verdicts in cases not triable by right by a jury would effectively be advisory, as the district judge could always rule that the verdict was advisory if the judge did not agree with the jury’s verdict. We find apt the Sixth Circuit’s discussion of a similar issue in Hildebrand v. Board of Trustees, 607 F.2d 705 (6th Cir.1979): [Considerations of fundamental fairness and judicial economy militate against th[e] view [that it is proper to abort a jury trial and convert the proceedings into a bench trial under some circumstances]. Any good trial lawyer will testify that there are significant tactical differences in presenting and arguing a case to a jury as opposed to a judge. To convert a trial from a jury trial to a bench trial (or vice versa) in the middle of the proceedings is to interfere with counsel’s presentation of their case and, quite possibly, to prejudice one side or the other. Id. at 710. Cf. Pradier v. Elespuru, 641 F.2d 808, 811 (9th Cir.1981) (“There are frequently significant tactical differences in presenting a case to a court [with" }, { "docid": "21550164", "title": "", "text": "at least three reasons why waiting that long constituted an abuse of discretion in that case. First, the court reasoned that to sanction the practice would permit judges to exercise “veto power” over jury verdicts with which they disagree. Id. at 889. Second, the court observed that Rule 39(e) permits the parties to stipulate to a jury trial even if the claims were not triable as of right by a jury. (In that case, both sides had requested a jury trial, and neither side had moved to strike the jury demand or for a directed verdict. Id.) Finally, the court believed that fundamental fairness and judicial economy required notice of an advisory jury in advance of trial, so that counsel “may prepare a case appropriate to the trier of fact.” Id. at 889; see also Hildebrand v. Board of Trustees, 607 F.2d 705, 710 (6th Cir.1979) (“Any good trial lawyer will testify that there are significant tactical differences in presenting and arguing a case to a jury as opposed to a judge.”). While we agree that the foregoing considerations should inform the trial court’s discretion under Rule 39(c), we do not believe Judge Lowe committed reversible error on the facts of this case. First, and most significantly, Judge Lowe did not wait until the verdict was returned before deciding that the verdict would be advisory. Accordingly, there was no danger that the trial judge would veto the jury’s verdict. Cf. Thompson, 963 F.2d at 888 (court declared jury advisory after verdict); Bereda, 865 F.2d at 50 (same). Nor do we read Rule 39(c)’s provision for “trial by consent” to mandate the court’s acceptance of the jury’s verdict in this case. Rule 39(c) provides that the court, “with the consent of both parties, may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right.” Fed.R.Civ.P. 39(c) (emphasis added). Thus, when both parties consent, Rule 39(c) invests the trial court with the discretion — but not the duty — to submit an equitable claim to the jury for a" }, { "docid": "21550166", "title": "", "text": "binding verdict. While the litigants are free to request a jury trial on an equitable claim, they cannot impose such a trial on an unwilling court. See 5 James Wm. Moore, et al., Moore’s Federal Practice ¶ 39.11 (2d ed. 1993) (“Thus in private litigation the court and the parties can agree to try equitable actions to a jury whose verdict will have the effect of a common law verdict.”) (emphasis in original). Accordingly, even if we were to accept Merex’s argument that Fairchild consented to Merex’s demand for a jury trial of its promissory estoppel claim, such consent would not divest the trial judge of her discretion to decide the equitable issue. Finally, although Rule 39(e) does not expressly require advance notice to the parties of the court’s intention to treat the jury as advisory, we agree that such notice is preferable. In the absence of an express statutory mandate, however, we are not inclined to reverse on this basis alone, at least absent some demonstrable prejudice to the complaining party. Given the minimal strictures of federal pleading, it will sometimes not be clear until well into the trial whether an issue is equitable or legal. Accordingly, we hold that the district court did not abuse its discretion by declaring the jury advisory after the plaintiff rested its case. CONCLUSION We have carefully considered all of Me-rex’s many remaining arguments and find them meritless. The judgment is affirmed. . We recognize that the trial judge in AMF Tubo-scope declared the jury advisory \"on the eve of trial.” 352 F.2d at 155. We note, however, that before reaching the Rule 39(c) issue, the Tenth Circuit had held that the parties were entitled to a jury trial as a matter of right. See 352 F.2d at 153. Hence, the trial judge in that case had no discretion to declare the jury advisory. See 352 F.2d at 155 (\"We are of the opinion that the Chief Judge abused his discretion, if discretion he had under the existing circumstances, in denying a jury trial.”) (emphasis added)." } ]

[ { "docid": "1387532", "title": "", "text": "lifting more than 20 pounds. Clearly, the evidence of record establishes that the claimant has the residual functional capacity to perform such activities. Record at 18. Step four of the sequential evaluation process requires the AU to determine whether the claimant is capable of performing her past relevant work. If step four is reached, as it was in this case, the AU is required to evaluate the claimant’s ability to perform her past relevant work under the following guidelines: (e) Your impairment(s) must prevent you from doing past relevant work. If we cannot make a decision based on your current work activity or on medical facts alone, and you have a severe impairments), we then review your residual functional capacity and the physical and mental demands of the work you have done in the past. If you can still do this kind of work, we will find that you are not disabled. 20 C.F.R. §§ 404.1520(e) and 416.920(e) (1988) (emphasis added). This regulation anticipates that the AU will consider the claimant’s residual functional capacity (RFC) and the physical and mental demands of the work the claimant has done in the past. The Social Security Administration (SSA) has issued rulings which interpret the federal regulations and under these rulings and the above cited regulation, the AU has a duty to fully investigate and make explicit findings as to the physical and mental demands of a claimant’s past relevant work and to compare that with what the claimant herself is capable of doing before he determines that she is able to perform her past relevant work. Although Ms. Nimick’s past work record is at best inconsistent, she has had a number of jobs over the past twenty years. These include: (1) a machine operator at Timex during 1969-70 for seven months; (2) an employee at a bag company during 1970 for seven months; (3) a waitress during 1970-71 for twelve to eighteen months; (4) a nurse’s aid at a nursing home during 1972-73 for eleven months; (5) a housekeeper at a private residence during 1978-79 for four months; (6) an employee at" } ]

[ { "docid": "4243680", "title": "", "text": "overhead work, lifting over twenty pounds, and pushing or pulling. Id. at 207. Dr. Sarah Hays, who performed a consultative examination on Sells, concluded that Sells had no demonstrable neurological findings and no limitations in her ability to lift, carry, stand, or walk. Id. at 298-99. The ALJ is required to evaluate the claimant’s ability to perform his or her past relevant work according to the following guidelines: Your impairment(s) must prevent you from doing past relevant work. If we cannot make a decision based on your current work activity or on medical facts alone, and you have a severe impairments(s), we then review your residual junctional capacity and the physical and mental demands of the work you have done in the past. If you can still do this kind of work, we will find that you are not disabled. 20 C.F.R. §§ 404.1520(e) and 416.920(e) (1994) (emphasis added). According to the Secretary’s interpretation of this regulation, see S.S.R. No. 82-62, Soc.Sec.Rep. 809, 812 (West 1983) the ALJ has a duty to “fully investigate and make explicit findings as to the physical and mental demands of a claimant’s past relevant work and to compare that with what the claimant herself is capable of doing before he determines that she is able to perform her past relevant work.” Nimick v. Secretary of Health & Human Serv., 887 F.2d 864, 866 (8th Cir.1989) (emphasis in original); accord Kirby, 923 F.2d at 1326. This court has held, consistent with Ruling 82-62, that “[a] conclusory determination that the claimant can perform past work, without these findings, does not constitute substantial evidence that the claimant is able to return to his [or her] past work.” Groeper v. Sullivan, 932 F.2d 1234, 1239 (8th Cir. 1991). The ALJ’s discussion of Sells’ limitations and the demands of her past work falls short of the standards required by the above-cited social security regulation and our decisions interpreting that regulation. Notably absent from the ALJ’s decision is any mention of Sells’ ability specifically to walk and stand for periods at a time. Further, Dr. Lopez’s finding that Sells would" }, { "docid": "1387540", "title": "", "text": "1983). The SSA further explains an ALJ’s responsibilities in determining a claimant’s ability to perform her past relevant work: The decision as to whether the claimant retains the functional capacity to perform past work which has current relevance has far-reaching implications and must be developed and explained fully in the disability decision. Since this is an important and, in some instances, a controlling issue, every effort must be made to secure evidence that resolves the issue as clearly and explicitly as circumstances permit. S.S.R. No. 82-62, Soc.Sec.Rep. 809, 812 (West 1983). . 20 C.F.R. § 404.1565(a) considers work experience relevant to this determination where it is “done within the last 15 years, lasted long enough for you to learn to do it, and was substantial gainful activity.\" That regulation further provides: “If you have no work experience or worked only 'off-and-on' or for brief periods of time during the 15 year period, we generally consider that these [jobs] do not apply.\" Ms. Nimick was employed as a machine operator from August, 1969, to February, 1970. That is more than 15 years prior to the July 9, 1986, date on which she filed for benefits. Further, she was only employed there for seven months. We have serious doubts as to whether this was long enough to “learn to do it” or “was substantial gainful activity.” This employment, as well as the rest of Ms. Nimick’s past employment, would seem to place her into that \"off-and-on” category of employee so that she should be considered to have no relevant past work experience. . The Social Security Rulings provide that where the evidence of record is insufficient to determine if a claimant is capable of performing her past work, the AU is permitted to refer to the Dictionary of Occupational Titles (DOT) job descriptions in order to define the job as it usually is performed in the national economy. If the AU then determines that the claimant is able to perform the work as defined in the DOT, the claimant will be found to not be disabled. S.S.R. No. 82-61 at 837-38. ." }, { "docid": "4145540", "title": "", "text": "past relevant work as follows: The decision as to whether the claimant retains the functional capacity to perform past work which has current relevance has far-reaching implications and must be developed and explained fully in the disability decision. Since this is an important and, in some instances, a controlling issue, every effort must be made to secure evidence that resolves the issue as clearly and explicitly as circumstances permit. Soc.Sec.Rep. Soc.Sec. Ruling No. 82-62, Serv. 809, 812 (West 1983). It is for the AU to develop the record to point out any discrepancy between the physical requirements of jobs as they exist in the national economy and the way in which they are actually performed. In this case the Secretary classified Baker’s past relevant work as medium work without any such. analysis. To have the residual functional capacity to perform “medium work,” an individual must be able to lift or carry up to twenty-five pounds frequently and be able occasionally to lift up to fifty pounds. 20 C.F.R. § 416.967(c) (1991). If the evidence does not support that Baker has the residual functional capacity to perform such work, the burden shifts to the Secretary to prove that she has the residual functional capacity to do other kinds of work and that there are jobs available in the national economy which she can realistically perform. See Talbott v. Bowen, 821 F.2d 511, 514-15 (8th Cir.1987). By redefining Baker’s past relevant work as light or sedentary, the majority has avoided shifting the burden to the Secre-. tary to determine if there are jobs in the national economy which Baker can perform. Even assuming the AU was incorrect in classifying Baker’s work as medium, I do not believe the evidence in the record as a whole supports that Baker can perform her past relevant work, even if defined as light or sedentary work. Baker’s employment history consists of three jobs performed for very short periods within the past fifteen years, totaling approximately one year of employment. Although the record does not contain an earnings record, Baker’s undisputed testimony was that she worked for" }, { "docid": "4145539", "title": "", "text": "either light or sedentary, the majority has engaged in factfinding, a role this court has stated is reserved for the Secretary. See O’Leary v. Schweiker, 710 F.2d 1334, 1342 (8th Cir.1983). Step four of the sequential analysis used in Social Security disability determinations requires the AU to review the claimant’s residual functional capacity and the physical and mental demands of the claimant’s past work. See 20 C.F.R. § 416.920(e) (1991); Kirby v. Sullivan, 923 F.2d 1323, 1327 (8th Cir.1991). It is the duty of the AU to fully investigate and make explicit findings as to the physical and mental demands of a claimant’s past relevant work. The AU is then to compare those demands with what the claimant herself is capable of doing before he determines that she is able to perform her past relevant work. Groeper v. Sullivan, 932 F.2d 1234, 1238 (8th Cir.1991); Nimick v. Secretary of Health & Human Servs., 887 F.2d 864, 866 (8th Cir.1989). The Social Security Administration explains the AU’s responsibility in determining a claimant’s ability to perform her past relevant work as follows: The decision as to whether the claimant retains the functional capacity to perform past work which has current relevance has far-reaching implications and must be developed and explained fully in the disability decision. Since this is an important and, in some instances, a controlling issue, every effort must be made to secure evidence that resolves the issue as clearly and explicitly as circumstances permit. Soc.Sec.Rep. Soc.Sec. Ruling No. 82-62, Serv. 809, 812 (West 1983). It is for the AU to develop the record to point out any discrepancy between the physical requirements of jobs as they exist in the national economy and the way in which they are actually performed. In this case the Secretary classified Baker’s past relevant work as medium work without any such. analysis. To have the residual functional capacity to perform “medium work,” an individual must be able to lift or carry up to twenty-five pounds frequently and be able occasionally to lift up to fifty pounds. 20 C.F.R. § 416.967(c) (1991). If the evidence does" }, { "docid": "11642663", "title": "", "text": "can still do that work. The decision as to whether the claimant retains the functional capacity to perform past work which has current relevance has far-reaching implications and must be developed and explained fully in the disability decision. Since this is an important and, in some instances, a controlling issue, every effort must be made to secure evidence that resolves the issues as clearly and explicitly as circumstances permit. Sufficient documentation will be obtained to support the decision. Any case requiring consideration of PRW will contain enough information on past work to permit a decision as to the individual’s ability to return to such past work.... Adequate documentation of past work includes factual information about those work demands which have a bearing on the medically established limitations. Detailed information about strength, endurance, manipulative ability, mental demands and other job requirements must be obtained as appropriate. This information will be derived from a detailed description of the work obtained from the claimant, employer, or other informed source.... In addition, for a claim involving a mental/emotional impairment, care must be taken to obtain a precise description of the particular job duties which are likely to produce tension and anxiety, e.g., speed, precision, complexity of tasks, independent judgments, working with other people, etc., in order to determine if the claimant’s mental impairment is compatible with the performance of such work. S.S.R. No. 82-62, Soc. Sec. Rep. 809, 811-12 (West 1983). This court has held, in accord with Ruling 82-62, that an AU has an obligation to “fully investigate and make explicit findings as to the physical and mental demands of a claimant’s past relevant work and to compare that with what the claimant herself is capable of doing before he determines that she is able to perform her past relevant work.” Nimick v. Secretary of Health and Human Servs., 887 F.2d 864, 866 (8th Cir.1989). Accord Kirby, 923 F.2d at 1326-27. The AU’s failure to fulfill this obligation requires reversal. Id. at 1327. But see Battles v. Sullivan, 902 F.2d 657, 659 (8th Cir.1990) (if record contains substantial evidence that claimant can perform" }, { "docid": "22145900", "title": "", "text": "done in the past. If you can still do this kind of work, we will find that you are not disabled. The Appeals Council determined that Williams’ residual functional capabilities would not prevent him from performing the physical and mental demands associated with his previous duties as a security guard. This determination was based upon substantial evidence. Williams testified as to his duties as a security guard. None of his responsibilities reached the level of medium work as defined by 20 C.F.R. § 404.1567(c) (1991). Since the AU found Williams capable of medium work, Williams by definition retained the “residual functional capacity” to perform his past work as a security guard. “If the claimant is able to perform his previous work, he is not disabled.” Yuc-kert, 482 U.S. at 141, 107 S.Ct. at 2291. The AU declined to proceed to the fourth step in Williams’ case, citing this court’s decision in Velazquez v. Heckler, 802 F.2d 680 (3d Cir.1986). Instead, the AU proceeded directly to step five to consider whether Williams could perform other jobs existing in significant numbers in the national economy. The AU misinterpreted Velazquez. In Velazquez, this court held that under step four of the sequential evaluation process, the Secretary must consider vocational factors (age, education and work experience) in determining whether a claimant can do his or her past work. Id. at 682. The Secretary has since promulgated new regulations, which provide that, at step four, vocational factors are not considered in determining whether or not a claimant retains the residual functional capacity to perform past relevant work. 20 C.F.R. § 404.1560(b) (1991). The Appeals Council correctly found the AU’s misinterpretation of Velazquez to be legal error. Williams did not qualify for benefits at step three because his medical condition fell short of matching or equalling a listed impairment. The AU as finder of fact was required to proceed to step four. “ ‘If a claimant suffers from a less severe impairment’ than the listed impairments, ‘the Secretary must determine whether the claimant retains the ability to perform either his former work or some less demanding" }, { "docid": "3679268", "title": "", "text": "(8th Cir.1990). At step four, an ALJ must consider whether a claimant’s impairments keep him from doing past relevant work. The ALJ evaluates a claimant’s ability to do past relevant work based on a review of the claimant’s residual functional capacity and the physical and mental demands of his past work. Kirby v. Sullivan, 923 F.2d 1323, 1327 (8th Cir.1991). If an ALJ finds that a claimant can return to his past relevant work, no disability exists. 20 C.F.R. § 404.1520(e); Martin, 901 F.2d at 652. Evans argues that the District Court erred in granting the Secretary’s motion for summary judgment because the ALJ’s finding of residual functional capacity to do past relevant work was not supported by substantial evidence. III. The work Evans did required the physical exertion of a heavy job. It is clear that, even in 1985, he could not do this kind of labor anymore. The ALJ, however, is not required to classify a claimant’s past relevant work solely on the basis of the physical demands of the claimant’s actual past work. According to the Secretary’s interpretation of past relevant work under 20 C.F.R. § 404.1520(e), [A] claimant will be found to be “not disabled” when it is determined that he or she retains the [residual functional capacity] to perform: 1. The actual functional demands and job duties of a particular past relevant job; or 2. The functional demands and job duties of the occupation as generally required by employers throughout the national economy. S.S.R. 82-61, 1975-1982 Soc.Sec.Rep. 836, 838 (West 1983). Therefore, even though Evans cannot perform the actual demands of his particular past relevant work, if the ALJ finds he can carry out his job as performed generally within the national economy, he is not disabled under the regulations. - The Secretary’s regulations allow an ALJ, when trying to determine what work exists in the national economy, to take notice of job information in the Dictionary of Occupational Titles (DOT). 20 C.F.R. § 404.-1566(d)(1). The DOT categorizes almost all truck-driving jobs as “medium work.” See DOT, Part A, Section 05.08.01. It appears, therefore, that" }, { "docid": "11642662", "title": "", "text": "parents which did not support the severity of the disability described by Berger. The AU did find that Groeper’s work activities were limited to simple repetitive tasks. And, work as a bus boy or a baker’s helper would not require performance of activities beyond Groeper’s ability. When evaluating whether a claimant is able to return to his past work, the AU is required to follow the appropriate guidelines. If we cannot make a decision based on your current work activity or on medical facts alone, and you have a severe impairments), we then review your residual functional capacity and the physical and mental demands of the work you have done in the past. If you can still do this kind of work, we will find that you are not disabled. 20 C.F.R. §§ 404.1520(e), 416.920(e) (1990). According to the Secretary’s interpretation, sections 404.1520(e) and 416.920(e) require careful consideration of the interaction of the limiting effects of the person’s impairment(s) and the physical and mental demands of his or her PRW to determine whether the individual can still do that work. The decision as to whether the claimant retains the functional capacity to perform past work which has current relevance has far-reaching implications and must be developed and explained fully in the disability decision. Since this is an important and, in some instances, a controlling issue, every effort must be made to secure evidence that resolves the issues as clearly and explicitly as circumstances permit. Sufficient documentation will be obtained to support the decision. Any case requiring consideration of PRW will contain enough information on past work to permit a decision as to the individual’s ability to return to such past work.... Adequate documentation of past work includes factual information about those work demands which have a bearing on the medically established limitations. Detailed information about strength, endurance, manipulative ability, mental demands and other job requirements must be obtained as appropriate. This information will be derived from a detailed description of the work obtained from the claimant, employer, or other informed source.... In addition, for a claim involving a mental/emotional impairment," }, { "docid": "12126643", "title": "", "text": "that Kirby was treated there for arthritis from May 1987 through the time of her administrative hearing. Similarly, the record is replete with undisputed clinical findings that Kirby suffers from right carpal tunnel syndrome. Although the AU acknowledged these findings, he failed to evaluate the effects of Kirby’s arthritis and carpal tunnel syndrome on the residual functional capacity of her hands. Additionally, the AU made no effort to fully investigate and to make explicit findings regarding the actual physical demands of Kirby’s former clerical position. A comparison of the claimant’s residual functional capacity with the actual functional demands of her particular past employment is essential to a determination that she is capable of performing her past relevant work. See Nimick, 887 F.2d at 866-68. The AU had a duty to develop the record fully in this regard. See Driggins v. Harris, 657 F.2d 187, 188 (8th Cir.1981); S.S.R. No. 82-62, Soc.Sec.Rep. 809, 812 (West 1983). Because he failed to do so, his conclusory determination that Kirby could return to her past relevant work is not supported by substantial evidence. See Nimick, 887 F.2d at 868. On remand, the AU may supplement the record by requesting information from Kirby’s former employer as to the physical and mental demands of her position as a clerical worker. Alternatively, the AU may refer to the job descriptions in the Dictionary of Occupational Titles for a definition of Kirby’s job as it is usually performed in the national economy. The AU should also determine whether Kirby has, in fact, been placed on permanent medical disability by her former employer. Although determinations of disability made by other entities are not binding on the SSA, 20 C.F.R. § 404.1504 (1990), such a finding is particularly relevant to Kirby’s ability to perform her past work and is entitled to some weight, see Turpin v. Bowen, 813 F.2d 165, 172 (8th Cir.1987). If, after proper review of an adequately developed record, the AU determines that Kirby cannot return to her past relevant work, the burden will shift to the Secretary to prove the existence of other jobs in the" }, { "docid": "11642664", "title": "", "text": "care must be taken to obtain a precise description of the particular job duties which are likely to produce tension and anxiety, e.g., speed, precision, complexity of tasks, independent judgments, working with other people, etc., in order to determine if the claimant’s mental impairment is compatible with the performance of such work. S.S.R. No. 82-62, Soc. Sec. Rep. 809, 811-12 (West 1983). This court has held, in accord with Ruling 82-62, that an AU has an obligation to “fully investigate and make explicit findings as to the physical and mental demands of a claimant’s past relevant work and to compare that with what the claimant herself is capable of doing before he determines that she is able to perform her past relevant work.” Nimick v. Secretary of Health and Human Servs., 887 F.2d 864, 866 (8th Cir.1989). Accord Kirby, 923 F.2d at 1326-27. The AU’s failure to fulfill this obligation requires reversal. Id. at 1327. But see Battles v. Sullivan, 902 F.2d 657, 659 (8th Cir.1990) (if record contains substantial evidence that claimant can perform past work, failure to develop past work record in full detail does not require remand). An AU’s decision that a claimant can return to his past work must be based on more than conclusory statements. The AU must specifically set forth the claimant’s limitations, both physical and mental, and determine how those limitations affect the claimant’s residual functional capacity. The AU must also make explicit findings regarding the actual physical and mental demands of the claimant’s past work. Then, the AU should compare the claimant’s residual functional capacity with the actual demands of the past work to determine whether the claimant is capable of performing the relevant tasks. See Kirby, 923 F.2d at 1326-27. A conclusory determination that the claimant can perform past work, without these findings, does not constitute substantial evidence that the claimant is able to return to his past work. Id. at 1327. Here, the AU concluded that Groeper was able to perform simple repetitive tasks that have only minimal memory requirements. He also found that work as either a bus boy" }, { "docid": "12126639", "title": "", "text": "or impairments which precluded the performance of her past relevant work. See Warner v. Heckler, 722 F.2d 428, 430 (8th Cir.1983). The AU found that Kirby failed to meet this burden because her impair- ■ ments of hypertension, right carpal tunnel syndrome, and possible seronegative arthritis would, at most, prevent her from frequently carrying more than ten pounds and walking or standing for unlimited periods. Because Kirby’s clerical job did not require such activities, the AU concluded that her impairments would not preclude her from performing it. We find the AU’s analysis deficient and unsupported by what little evidence the record contains concerning the functional demands of Kirby’s former position as a clerical worker. Step four of the sequential analysis used in Social Security disability determinations requires the AU to review the claimant’s residual functional capacity and the physical and mental demands of the claimant’s past work. See 20 C.F.R. § 404.1520(e) (1990). “[T]he AU has a duty to fully investigate and make explicit findings as to the physical and mental demands of a claimant’s past relevant work and to compare that with what the claimant herself is capable of doing before he determines that she is able to perform her past relevant work.” Nimick v. Secretary of Health & Human Servs., 887 F.2d 864, 866 (8th Cir.1989) (emphasis in original). These findings require evidence of the “actual functional demands and job duties of a particular past relevant job” or the “functional demands and job duties of the occupation as generally required by employers throughout the national economy.” See id. n. 2 (quoting S.S.R. No. 82-61, Soc.Sec.Rep. 836, 838 (West 1983)). An SSA ruling interpreting the regulations stated: The decision as to whether the claimant retains the functional capacity to perform past work which has current relevance has far-reaching implications and must be developed and explained fully in the disability decision. Since this is an important and, in some instances, a controlling issue, every effort must be made to secure evidence that resolves the issue as clearly and explicitly as circumstances permit. S.S.R. No. 82-62, Soc.Sec.Rep. 809, 812 (West 1983)." }, { "docid": "12126638", "title": "", "text": "is to determine whether substantial evidence in the record as a whole supports the Secretary’s denial of benefits to Kirby.. See Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir.1987). In making this determination, we must review the entire administrative record, taking into account evidence which fairly detracts from the AU’s findings. Turpin v. Bowen, 813 F.2d 165, 169 (8th Cir.1987). Kirby claims that substantial evidence in the record as a whole fails to support the AU’s conclusions that she can return to her past relevant work and that her testimony was not credible. She also argues that the AU erred in failing to consider the cumulative effects of her impairments and in rejecting the opinion of her treating physician. While we find some merit to each of these claims, we reverse and remand because of the AU’s failure properly to consider the specific demands of Kirby’s former work in concluding that she could return to it. Kirby bore the burden of proving at the administrative hearing that she suffered from a medically determinable impairment or impairments which precluded the performance of her past relevant work. See Warner v. Heckler, 722 F.2d 428, 430 (8th Cir.1983). The AU found that Kirby failed to meet this burden because her impair- ■ ments of hypertension, right carpal tunnel syndrome, and possible seronegative arthritis would, at most, prevent her from frequently carrying more than ten pounds and walking or standing for unlimited periods. Because Kirby’s clerical job did not require such activities, the AU concluded that her impairments would not preclude her from performing it. We find the AU’s analysis deficient and unsupported by what little evidence the record contains concerning the functional demands of Kirby’s former position as a clerical worker. Step four of the sequential analysis used in Social Security disability determinations requires the AU to review the claimant’s residual functional capacity and the physical and mental demands of the claimant’s past work. See 20 C.F.R. § 404.1520(e) (1990). “[T]he AU has a duty to fully investigate and make explicit findings as to the physical and mental demands of a claimant’s" }, { "docid": "4145538", "title": "", "text": "lifted no more than ten pounds. See 20 C.F.R. § 416.967(a), (b) (1991). By relying on this testimony, the court, in effect, has rejected other information in the record without explaining why other such testimony is more or less credible. For example, Social Security Ruling No. 83-10, interpreting the walking and standing requirements for “light” work provides: “the full range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday.” Soc.Sec.Rep.Serv. 46, 51 (West Supp.1991). The majority has not evaluated whether Baker could meet this requirement. See Carter v. Sullivan, 909 F.2d 1201, 1202 (8th Cir.1990) (per curiam). In addition, Baker testified she did not know the weight of the rollers she lifted in her job at the fiberglass boat company. (Admin.R. at 109.) She also stated she could not return to the shirt factory because she could not sit for the required time, {Id. at 77), or carry the load of shirts, {Id. at 110.) By determining that Baker’s past relevant work was either light or sedentary, the majority has engaged in factfinding, a role this court has stated is reserved for the Secretary. See O’Leary v. Schweiker, 710 F.2d 1334, 1342 (8th Cir.1983). Step four of the sequential analysis used in Social Security disability determinations requires the AU to review the claimant’s residual functional capacity and the physical and mental demands of the claimant’s past work. See 20 C.F.R. § 416.920(e) (1991); Kirby v. Sullivan, 923 F.2d 1323, 1327 (8th Cir.1991). It is the duty of the AU to fully investigate and make explicit findings as to the physical and mental demands of a claimant’s past relevant work. The AU is then to compare those demands with what the claimant herself is capable of doing before he determines that she is able to perform her past relevant work. Groeper v. Sullivan, 932 F.2d 1234, 1238 (8th Cir.1991); Nimick v. Secretary of Health & Human Servs., 887 F.2d 864, 866 (8th Cir.1989). The Social Security Administration explains the AU’s responsibility in determining a claimant’s ability to perform her" }, { "docid": "1747466", "title": "", "text": "his conclusion. Rohan v. Chater, 98 F.3d 966, 971 (7th Cir.1996). The decisions of ALJs are highly regulated by the Commissioner’s Regulations and Rulings. The Social Security Rulings (SSRs) do not have the force of law, but are binding on ALJs. 20 C.F.R. § 402.35(b)(1); Prince v. Sullivan, 933 F.2d 598, 602 (7th Cir.1991). III. DISCUSSION A. Adequacy of ALJ’s Consideration of Demands of Past Relevant Work and Plaintiffs Ability to Meet Such Demands Plaintiff contends that in determining that he was able to return to his job as a button assembler, the ALJ did not evaluate the specific demands of the job and then assess, in light of the available evidence, plaintiffs ability to meet such demands. To determine whether, at step four, plaintiff is physically capable of returning to his former job, the ALJ must ascertain the demands of that work in relation to plaintiffs present physical capacities. 20 C.F.R. §§ 404.1520(e), 416.920(e); Strittmatber v. Schweiker, 729 F.2d 507, 509 (7th Cir.1984). This is particularly true in cases where, as here, there is evidence that some of plaintiffs impairments are worse than when he was working. Id. Having ascertained such information, the ALJ “must list the specific physical requirements of the previous job.” Nolen v. Sullivan, 939 F.2d 516, 518 (7th Cir.1991). Then, the ALJ must give “careful consideration” to “the interaction of the limiting effects of the person’s impairments) and the physical and mental demands of his or her past relevant work to determine whether the individual can still do that work.” SSR 82-62. The ALJ’s determination about the claimant’s ability to perform his or her past work has “far reaching implications and must be developed and explained fully in the disability decision.” Id. Therefore, the ALJ must make “every effort ... to secure evidence that resolves the issue [of whether the claimant can perform his or her past work] as clearly and explicitly as circumstances permit.” Id. In his decision, the ALJ determined that plaintiffs past relevant work was “as a bench assembler at Badger [sic] Parts.” (Tr. at 21.) With respect to the specific requirements" }, { "docid": "9950051", "title": "", "text": "Social Security regulations prescribe a five-step sequential inquiry to be followed in determining whether a claimant is disabled. The following steps are addressed in order: (1) is the claimant presently employed? (2) is the claimant’s impairment severe? (3) does the impairment meet or exceed one of a list of specific impairments? (4) is the claimant unable to perform his or her former occupation? and (5) is the claimant unable to perform any other work in the economy? 20 C.F.R. §§ 404.1520, 416.920; Pitts v. Sullivan, 923 F.2d 561, 564 (7th Cir.1991). The AU decided this case at step four and found that Prince is able to perform his former occupation. Prince argues that the AU erred in failing to follow the dictates of S.S.R. 82-62, which requires that the AU make specific findings regarding a claimant's capacity to do past relevant work. Specifically, he contends that the AU in this case failed to make any determination regarding Prince’s RFC and necessarily failed to compare the RFC with the exertional requirements of his past relevant work. S.S.R. 82-62 provides that: In finding that an individual has the capacity to perform a past relevant job, the determination or decision must contain among the findings the following specific findings of fact: 1. A finding of fact as to the individual’s RFC. 2. A finding of fact as to the physical and mental demands of the past job/occupation. 3. A finding of fact that the individual’s RFC would permit a return to his or her past job or occupation. The issue in this case is whether this ruling sets forth an affirmative duty on AUs to make such findings or whether it is merely hortatory language. Courts routinely accord considerable deference to an agency’s interpretation of its own regulations. Lauer v. Bowen, 818 F.2d 636, 639 (7th Cir.1987) (per cu-riam ); United Fire Insurance Co. v. Commissioner of Internal Revenue, 768 F.2d 164, 169 (7th Cir.1985). In commenting on the role of interpretive rulings such as S.S.R. 82-62, the Supreme Court stated in Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161," }, { "docid": "12126640", "title": "", "text": "past relevant work and to compare that with what the claimant herself is capable of doing before he determines that she is able to perform her past relevant work.” Nimick v. Secretary of Health & Human Servs., 887 F.2d 864, 866 (8th Cir.1989) (emphasis in original). These findings require evidence of the “actual functional demands and job duties of a particular past relevant job” or the “functional demands and job duties of the occupation as generally required by employers throughout the national economy.” See id. n. 2 (quoting S.S.R. No. 82-61, Soc.Sec.Rep. 836, 838 (West 1983)). An SSA ruling interpreting the regulations stated: The decision as to whether the claimant retains the functional capacity to perform past work which has current relevance has far-reaching implications and must be developed and explained fully in the disability decision. Since this is an important and, in some instances, a controlling issue, every effort must be made to secure evidence that resolves the issue as clearly and explicitly as circumstances permit. S.S.R. No. 82-62, Soc.Sec.Rep. 809, 812 (West 1983). The AU’s perfunctory' conclusion that Kirby’s position as a clerical worker did not require more than light exertion falls far short of the review required by the Secretary’s own regulations. The only evidence in the record regarding the tasks required by Kirby’s former job is a vocational report Kirby completed for the SSA when she first applied for disability benefits. She described a day’s duties as follows: I used the letter opening machine — I reached in each envelope & pulled out the claims separating them in different trays after opening about 1,000 envelopes & separting [sic] them, I then had to stand in the corner & sort them with knowledge of knowing the companies and to what lady got what company. Then type envelopes for xrays and send them back to the doctors offices, which amounted to about 100 per day, then alphabetize all these claims, then stamp them one at a time, then send back claims that needed more information, and that went to other offices. This is all one days duties. Although" }, { "docid": "11642665", "title": "", "text": "past work, failure to develop past work record in full detail does not require remand). An AU’s decision that a claimant can return to his past work must be based on more than conclusory statements. The AU must specifically set forth the claimant’s limitations, both physical and mental, and determine how those limitations affect the claimant’s residual functional capacity. The AU must also make explicit findings regarding the actual physical and mental demands of the claimant’s past work. Then, the AU should compare the claimant’s residual functional capacity with the actual demands of the past work to determine whether the claimant is capable of performing the relevant tasks. See Kirby, 923 F.2d at 1326-27. A conclusory determination that the claimant can perform past work, without these findings, does not constitute substantial evidence that the claimant is able to return to his past work. Id. at 1327. Here, the AU concluded that Groeper was able to perform simple repetitive tasks that have only minimal memory requirements. He also found that work as either a bus boy or a baker’s helper fits within these restrictions. Administrative Record at 13-14. This is the extent of the AU’s discussion of Groeper’s limitations and the demands of Groeper’s past work. The AU failed to fully investigate and to make findings regarding either the demands of Groe-per’s past work or Groeper’s capabilities. Thus, he did not properly evaluate Groe-per’s ability to perform past work. See Kirby, 923 F.2d at 1327. The record does contain some evidence of the physical demands of Groeper’s past work. The vocational report Groeper completed at the time he applied for benefits sets forth the duties he performed. As a bus boy, Groeper swept, mopped, washed dishes and moved food from storage to preparation areas. Administrative Record at 148. As a baker’s helper, he cut and shaped dough, rolled pie crust, and put icing and fruit on rolls. Id. at 149. However, there is no evidence regarding the mental demands of these jobs. III. CONCLUSION The evidence supports the AU’s finding that Groeper’s residual functional capacity is limited by his impairments. However," }, { "docid": "4243681", "title": "", "text": "make explicit findings as to the physical and mental demands of a claimant’s past relevant work and to compare that with what the claimant herself is capable of doing before he determines that she is able to perform her past relevant work.” Nimick v. Secretary of Health & Human Serv., 887 F.2d 864, 866 (8th Cir.1989) (emphasis in original); accord Kirby, 923 F.2d at 1326. This court has held, consistent with Ruling 82-62, that “[a] conclusory determination that the claimant can perform past work, without these findings, does not constitute substantial evidence that the claimant is able to return to his [or her] past work.” Groeper v. Sullivan, 932 F.2d 1234, 1239 (8th Cir. 1991). The ALJ’s discussion of Sells’ limitations and the demands of her past work falls short of the standards required by the above-cited social security regulation and our decisions interpreting that regulation. Notably absent from the ALJ’s decision is any mention of Sells’ ability specifically to walk and stand for periods at a time. Further, Dr. Lopez’s finding that Sells would be unable to perform work that involves overhead work, lifting of twenty pounds or more, and pushing or pulling, although illuminating with respect to Sells’ ability to perform work requiring upper-body strength, sheds little, if any light, on her ability to walk and stand for periods at a time. Indeed, the relevance of Sells’ ability to do any of these things is questionable since Sells stated that her job as a security guard did not require any lifting or carrying and only occasional bending. Also missing from the ALJ’s decision are any findings as to Sells’ ability to tolerate the physical rigors of her past work as a security guard. See Kirby, 923 F.2d at 1327 (“A comparison of a claimant’s residual functional capacity with the actual functional demands of her particular former work is essential to a determination that she is able to perform her past relevant work.”). Because the ALJ failed to properly consider both Sells’ present limitations and the demands of her past work, his determination that Sells could return to her" }, { "docid": "22154214", "title": "", "text": "obligation in every social security case to ensure that an adequate record is developed during the disability hearing consistent with the issues raised. See Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir.1992). This is true despite the presence of counsel, although the duty is heightened when the claimant is unrepresented. Thompson v. Sullivan, 987 F.2d 1482, 1492 (10th Cir.1993). The duty is one of inquiry, ensuring that the ALJ is informed about “ ‘facts relevant to his decision and [learns] the claimant’s own version of those facts.’ ” Dixon v. Heckler, 811 F.2d 506, 510 (10th Cir.1987) (quoting Heckler v. Campbell, 461 U.S. 458, 471 n. 1, 103 S.Ct. 1952, 1959 n. 1, 76 L.Ed.2d 66 (1983) (Brennan, J., concurring)). In a step four proceeding, this duty requires the ALJ to review the claimant’s residual functional capacity “and the physical and mental demands of the work [she has] done in the past.” 20 C.F.R. § 404.1520(e). Social Security Ruling 82-62 addresses the ALJ’s role more specifically, requiring him or her to make findings regarding 1) the individual’s residual functional capacity, 2) the physical and mental demands of prior jobs or occupations, and 3) the ability of the individual to return to the past occupation given his or her residual functional capacity. S.S.R. 82-62, Soc.Sec.Rep. 809, 812 (West 1983); see also Nimick v. Secretary of Health & Human Servs., 887 F.2d 864, 866 (8th Cir.1989) (ALJ has a duty to fully investigate physical and mental demands of past work and compare them to claimant’s capabilities). The transcript of the hearing before the ALJ reveals there was no inquiry regarding the nature of, and physical and mental demands associated with, the position of negative stripper. In' fact, this prior occupation was never mentioned in the evidence. Likewise, there was no inquiry into claimant’s ability to perform this job prior to the time her insured status expired. There were several explicit references in the record to claimant’s inability to handle stress, and the general nature of her psychological impairments suggested a need to probe the stress level of any prior job that" }, { "docid": "1387539", "title": "", "text": "as suggested above, or that she is not capable of performing her past relevant work but is able to perform “light work”, then the burden shifts to the Secretary to show that Ms. Nimick is capable of performing work that exists in the national economy. Jelinek v. Heckler, 764 F.2d 507, 511 (8th Cir.1985). If that is the case, a vocational expert will be required under the guidelines set forth by the SSA regulations and this circuit’s case law. Id. . The Honorable Henry Woods, United States District Judge for the Eastern District of Arkansas. . In one such ruling the SSA explains that: Under sections 404.1520(e) and 416.920(e) of the regulations, a claimant will be found to be “not disabled” when it is determined that he or she retains the RFC to perform: 1. The actual functional demands and job duties of a particular past relevant job; or 2. The functional demands and job duties of the occupation as generally required by employers throughout the national economy. S.S.R. No. 82-61, Soc.Sec.Rep. 836, 838 (West 1983). The SSA further explains an ALJ’s responsibilities in determining a claimant’s ability to perform her past relevant work: The decision as to whether the claimant retains the functional capacity to perform past work which has current relevance has far-reaching implications and must be developed and explained fully in the disability decision. Since this is an important and, in some instances, a controlling issue, every effort must be made to secure evidence that resolves the issue as clearly and explicitly as circumstances permit. S.S.R. No. 82-62, Soc.Sec.Rep. 809, 812 (West 1983). . 20 C.F.R. § 404.1565(a) considers work experience relevant to this determination where it is “done within the last 15 years, lasted long enough for you to learn to do it, and was substantial gainful activity.\" That regulation further provides: “If you have no work experience or worked only 'off-and-on' or for brief periods of time during the 15 year period, we generally consider that these [jobs] do not apply.\" Ms. Nimick was employed as a machine operator from August, 1969, to February, 1970." } ]

[ { "docid": "8302510", "title": "", "text": "register.” § 16913(a). And it further says that “[t]he Attorney General shall have the authority to specify the applicability of the [registration] requirements ... to sex offenders convicted before the enactment of this chapter ....” § 16913(d) (emphasis added). In our view, these provisions, read together, mean that the Act’s registration requirements do not apply to pre-Act offenders until the Attorney General specifies that they do apply. We reverse a Court of Appeals determination that, in effect, holds the I A The new federal Act reflects Congress’ awareness that pre-Act registration law consisted of a patchwork of federal and 50 individual state registration systems. See 73 Fed. Reg. 38045 (2008). The Act seeks to make those systems more uniform and effective. It does so by repealing several earlier federal laws that also (but less effectively) sought uniformity; by setting forth comprehensive registration-system standards; by making federal funding contingent on States’ bringing their systems into compliance with those standards; by requiring both state and federal sex offenders to register with relevant jurisdictions (and to keep registration information current); and by creating federal criminal sanctions applicable to those who violate the Act’s registration requirements. 18 U. S. C. § 2250(a) (criminal provision); 42 U. S. C. §§ 16911(10), 16913-16916 (2006 ed. and Supp. Ill) (registration requirements); § 16925 (federal funding); § 129, 120 Stat. 600 (repeal of earlier laws). The Act’s criminal penalty applies to “[w]ho[m]ever ... is required to register under [the Act].” 18 U. S. C. § 2250(a). It says that such a person (a federal sex offender or a nonfed-eral sex offender who travels in interstate commerce) must not knowingly fail “to register or update a registration as required by [the Act].” Ibid, (emphasis added); see Appendix, infra, at 446. The relevant registration requirements are set forth in an Act provision that states: “Registry requirements for sex offenders “(a) In general “A sex offender [defined to include any offender who was convicted of a sex offense] shall register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the" } ]

[ { "docid": "4311300", "title": "", "text": "to pre-SORNA sex offenders] by making it indisputably clear that SORNA applies to all sex offenders ... regardless of when they were convicted.” Id. In Carr, the Supreme Court recently held that criminal liability under SORNA “cannot be predicated on pre-SORNA travel,” 130 S.Ct. at 2233, and went on to explain that “[o]nce a person becomes subject to SORNA’s registration requirements, which can occur only after the statute’s effective date, that person can be convicted under § 2250 [only] if he thereafter travels and then fails to register,” id. at 2236 (emphasis added). Accordingly, if SORNA did not apply to Fuller until the Interim Ruling, then his interstate travel would have occurred before he was “subject to SORNA’s registration requirements.” Id. If, on the other hand, Fuller became “subject to” SORNA upon its enactment, then his post-SORNA interstate travel and failure to register was unlawful irrespective of the Interim Ruling. II. Fuller’s Challenges to SORNA A. Section 16913(d) The principal question before us is the meaning and effect of § 16913(d) of SORNA. Section 16913(d) grants the Attorney General “the authority to specify the applicability of [SORNA’s registration] requirements ... to sex offenders convicted before [SORNA’s enactment] ..., and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with [the initial registration requirements of § 16913(b) ].” 42 U.S.C. § 16913(d). We review the interpretation of a federal statute de novo. See Muller v. Costello, 187 F.3d 298, 307 (2d Cir.1999). “It is well established that, absent a clear direction by Congress to the contrary, a law takes effect on the date of its enactment.” Gozlon-Peretz v. United States, 498 U.S. 395, 404, 111 S.Ct. 840, 112 L.Ed.2d 919 (1991). Thus, we must determine whether § 16913(d) constitutes a clear direction by Congress to leave the determination of SORNA’s applicability to pre-SORNA sex offenders solely to the Attorney General’s discretion. As is always the case with statutory interpretation, our first task is “to determine whether the language at issue has a plain and unambiguous meaning.” Robinson" }, { "docid": "17463405", "title": "", "text": "offenders who committed their offense before SORNA was enacted. Instead, the Court explained that under § 16913, “the Act’s registration requirements do not apply to pre-Act offenders until the Attorney General specifies that they do apply.” Reynolds, 132 5.Ct. at 978. This means, contrary to this Court’s previous holding, that Reynolds’s obligation to register under SORNA does not derive from the Act itself but from the administrative rule promulgated by the Attorney General. We must now reach the merits of the claim Reynolds raises challenging the legality of that rule. Reynolds, 132 S.Ct. at 984 (“Whether the Attorney General’s Interim Rule sets forth a valid specification consequently matters in the case before us.”). B. Administrative History At issue here is the Attorney General’s February 28, 2007 Interim Rule that made SORNA’s registration requirements retroactive for all pre-SORNA offenders. Applicability of the Sex Offender Registration and Notification Act, 72 Fed.Reg. 8894-01, 8897 (Feb. 28, 2007) [hereinafter “Interim Rule”]. The Attorney General issued this Interim Rule seven months after SORNA delegated authority to him to make SOR-NA retroactive. The Attorney General did not provide the period for notice and comment required under 5 U.S.C. § 553(b), nor did he provide the minimum thirty-day delay before the rule became effective under 5 U.S.C. § 553(d)(3). Instead, he concluded that notice and comment were not required because “good cause” existed pursuant to 5 U.S.C. § 553(b)(B) and that requiring those procedures would be “contrary to the public interest.” Interim Rule, 72 Fed.Reg. at 8896-97 (citing 5 U.S.C. § 553(b)(B)). He provided the following reasons to support his finding of good cause: The immediate effectiveness of this rule is necessary to eliminate any possible uncertainty about the applicability of the Act’s requirements — and related means of enforcement, including criminal liability under 18 U.S.C. 2250 for sex offenders who knowingly fail to register as required — to sex offenders whose predicate convictions predate the enactment of SORNA. Delay in the implementation of this rule would impede the effective registration of such sex offenders and would impair immediate efforts to protect the public from sex offenders" }, { "docid": "23160366", "title": "", "text": "of the requirements of this subchapter to sex offenders convicted before July 27, 2006 [SORNA’s enactment date] or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b) of this section. To enforce its registration provisions, SORNA includes 18 U.S.C. § 2250(a) (2006), which makes it a federal felony, punishable by up to ten years imprisonment, inter alia, for a person who is required to register under SORNA to travel in interstate commerce and knowingly fail to register or update his sex offender registration. On February 28, 2007, after the Appellants had committed the acts giving rise to their indictments, the Attorney General issued an interim rule stating that the registration requirements of SORNA applied to all convicted sex offenders, including those offenders who were convicted of sex offenses prior to the enactment of SORNA (“pre-SORNA offenders”). 72 Fed.Reg. 8894, 8896 (Feb. 28, 2007). According to the Attorney General, the purpose of the interim rule was to “foreclosfe] any dispute as to whether SORNA is applicable where the conviction for the predicate sex offense occurred prior to the enactment of SORNA.” Id. The Attorney General cited § 16913(d) as the source of his authority to promulgate the rule, “regardless of whether SORNA would apply with such scope absent this rule.” Id. B. The Appellants argue that the district courts erred in denying their motions to dismiss because the registration requirements of SORNA did not apply to them at the time they committed their alleged SORNA violations. The Appellants were convicted of their underlying sex offenses and had completed their sentences prior to the enactment of SORNA. Their indictments for violations of SORNA related to conduct that was committed sometime between SORNA’s enactment and the issuance of the interim rule regarding the applicability of SORNA to pre-SORNA offenders. According to the Appellants, until the Attorney General issued the interim rule, SORNA’s application to pre-SORNA offenders was not established, and thus the Appellants should not have been charged with" }, { "docid": "4311299", "title": "", "text": "offenders and for other categories of sex offenders who are unable to comply with subsection (b) of this section. Id. § 16913(d). Pursuant to this section, on February 28, 2007, the Attorney General issued an Interim Ruling concerning “whether SORNA is applicable where the conviction for the predicate sex offense occurred prior to the enactment of SORNA.” 72 Fed.Reg. at 8896. The Interim Ruling stated that SORNA’s direct federal law registration requirements for sex offenders are not subject to any deferral of effectiveness. They took effect when SORNA was enacted on July 27, 2006, and currently apply to all offenders in the categories for which SORNA requires registration. Id. at 8895. The Attorney General made plain that the Interim Ruling was issued, not because SORNA failed to make its registration rules applicable to pre-SORNA sex offenders, but rather “to specify th[e] scope of application for SORNA, regardless of whether SORNA would apply with such scope absent th[e] rule.” Id. at 8896. Thus, the Interim Ruling “foreclose[d] ... claims [that SORNA did not apply upon enactment to pre-SORNA sex offenders] by making it indisputably clear that SORNA applies to all sex offenders ... regardless of when they were convicted.” Id. In Carr, the Supreme Court recently held that criminal liability under SORNA “cannot be predicated on pre-SORNA travel,” 130 S.Ct. at 2233, and went on to explain that “[o]nce a person becomes subject to SORNA’s registration requirements, which can occur only after the statute’s effective date, that person can be convicted under § 2250 [only] if he thereafter travels and then fails to register,” id. at 2236 (emphasis added). Accordingly, if SORNA did not apply to Fuller until the Interim Ruling, then his interstate travel would have occurred before he was “subject to SORNA’s registration requirements.” Id. If, on the other hand, Fuller became “subject to” SORNA upon its enactment, then his post-SORNA interstate travel and failure to register was unlawful irrespective of the Interim Ruling. II. Fuller’s Challenges to SORNA A. Section 16913(d) The principal question before us is the meaning and effect of § 16913(d) of SORNA. Section 16913(d)" }, { "docid": "22895327", "title": "", "text": "72 Fed.Reg. 30,210. This time, the Attorney General responded to the comments about the retroactivity determination when he published the final SMART guidelines on July 2, 2008. 73 Fed.Reg. 38030, 38063. The parties do not dispute that Valverde was a sex offender by reason of his conviction under California law. Nor do they dispute that after Valverde’s release, he knowingly traveled from California to Missouri, where he knowingly failed to register as a sex offender. Because SORNA did not specify whether it applied to individuals convicted of a sex offense before the statute’s July 2006 enactment, but instead delegated that determination to the Attorney General, Valverde, having been convicted in 2002, was not subject to prosecution under SORNA until the Attorney General, pursuant to his delegated rulemaking authority under 42 U.S.C. § 16913(d), determined, in compliance with the APA, that SORNA’s registration requirements applied retroactively to him and others convicted before the statute’s enactment. See United States v. Juvenile Male, 590 F.3d 924, 929 (9th Cir.2010) (“Congress delegated to the Attorney General the decision whether SORNA should apply retroactively to sex offenders who were convicted before the statute’s effective date.”). The issue is therefore whether there was a validly promulgated regulation that applied SORNA’s registration requirements retroactively to Valverde during the January 2008 period covered by his indictment for failure to register and for traveling in interstate commerce. III. There are three instruments that might have been employed to make SORNA effective retroactively to offenders convicted before its enactment: (1) the interim rule issued on February 28, 2007; (2) the proposed SMART guidelines issued on May 30, 2007; and (3) the final SMART guidelines issued on July 2, 2008. The final SMART guidelines complied with the APA’s procedural requirements; they were not yet in effect, however, at the time of the act charged in Valverde’s indictment — his failure to register in January 2008. The Government does not contend that the May 30, 2007 preliminary SMART guidelines carried the force of law, and rightly so: they neither met the APA’s notice and comment requirements, nor did the Attorney General seek" }, { "docid": "19974991", "title": "", "text": "enters or leaves, or resides in, Indian country; and (3) knowingly fails to register or update a registration as required by the Sex Offender Registration and Notification Act; shall be fined under this title or imprisoned not more than 10 years, or both. As the plain language of the provision makes clear, three elements must be satisfied for an individual such as Lawrance, who has been convicted of a sex offense only under state law, to violate § 2250. First, the individual must be required to register under SORNA. Second, the individual must travel in interstate or foreign commerce. Third, the individual must knowingly fail to register or update his registration as required by SORNA. It is undisputed that during some portion of the time period set forth in the indictment, Lawrance was required to register under SORNA as a sex offender and knowingly failed to register or update his registration. See Majority Op. at 1336. He therefore satisfied the first and third elements of § 2250. Lawrance, however, only undertook the act necessary to satisfy the second element of the offense, interstate travel, before SORNA applied to sex offenders such as himself who had been convicted of their crimes prior to SOR-NA’s effective date, July 27, 2006. Section 16913(d) of SORNA reads: The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before July 27, 2006 or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b) of this section. 42 U.S.C. § 16913(d). On February 27, 2007 the Attorney General issued an Interim Rule: The requirements of the Sex Offender Registration and Notification Act apply to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of that Act. 28 C.F.R. § 72.3. The majority concedes that all of Law-ranee’s interstate travel occurred prior to February 27, 2007, the date the Interim Rule was issued." }, { "docid": "23160381", "title": "", "text": "where they reside, where they are employed, and where they are a student, id. § 16913(a); and requires those persons to keep their registrations current, id. § 16913(c). SORNA also authorizes the Attorney General to specify “the applicability of’ SORNA to persons convicted of sex offenses before July 27, 2006. Id. § 16913(d). Moreover, SORNA makes it unlawful for a person who is required to register under SORNA and travels in interstate commerce to knowingly fail to register or update a registration as required by SORNA. 18 U.S.C. § 2250. On February 28, 2007, seven months after SORNA’s enactment, the Department of Justice (the “DOJ”) published interim rules specifying the applicability of SORNA to persons convicted of sex offenses before July 27, 2006. See 28 C.F.R. §§ 72.1 to 72.3 (the “Interim Rules”); see also Applicability of the Sex Offender Registration and Notification Act, 72 Fed.Reg. 8,894 (Feb. 28, 2007). The Interim Rules make it clear that these sex offenders were covered by SORNA on its effective date. The Interim Rules state that “[t]he requirements of [SORNA] ... apply to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of that Act.” 28 C.F.R. § 72.3. Moreover, the DOJ’s statement accompanying its publication of the Interim Rules states: “Considered facially, SORNA requires all sex offenders who were convicted of sex offenses in its registration categories to register in relevant jurisdictions, with no exception for sex offenders whose convictions predate the enactment of SORNA.” 72 Fed. Reg. at 8,896 (emphasis added). After the DOJ published the Interim Rules, the Defendants were indicted for violating one of SORNA’s provisions, see 18 U.S.C. § 2250, by being persons required to register under SORNA, traveling in interstate commerce, and failing to register or update their registrations as required by SORNA. All of the conduct charged in the indictments occurred prior to February 28, 2007, the effective date of the Interim Rules. After unsuccessfully moving to dismiss their indictments, all of the Defendants were convicted for violating 18 U.S.C. § 2250. Though the Defendants raise" }, { "docid": "20716852", "title": "", "text": "to register as a sex offender under SOR-NA knowingly fails to register after traveling in interstate commerce.” United States v. DiTomasso, 621 F.3d 17, 19-20 (1st Cir.2010), cert. granted and judgment vacated, — U.S. -, 132 S.Ct. 1533, 182 L.Ed.2d 151 (2012). The issue in this case is whether Whitlow, whose predicate sex-offender conviction predates SORNA, was subject to its registration requirements when he traveled to Massachusetts in 2009 and then failed to register. If he was required to register, his conviction under § 2250(a) was proper. See Carr v. United States, 560 U.S. 438, 130 S.Ct. 2229, 2236, 176 L.Ed.2d 1152 (2010). In DiTomasso, we concluded that SOR-NA automatically applied to pre-Act offenders upon enactment. 621 F.3d at 22-25. The district court presumably had this ruling in mind when it denied Whitlow’s motion to dismiss “in light of existing First Circuit law.” But in Reynolds, decided after the district court’s decision, the Supreme Court held to the contrary, explaining that SORNA left it to the Attorney General to “specify” whether the Act applied to sex offenders convicted before its passage. 132 S.Ct. at 980-84; see 42 U.S.C. § 16913(d). Unless and until the Attorney General did so, SORNA applied only prospectively. Reynolds, 132 S.Ct. at 984. In light of Reynolds, the question here is whether, at the time of Whitlow’s travel and failure to register in 2009, the Attorney General had issued valid regulations extending SORNA’s registration requirements to pre-Act offenders. We have not previously considered this question because of our pre-Reynolds view that SOR-NA was automatically retroactive. United States v. Parks, 698 F.3d 1, 4 (1st Cir.2012). The Attorney General has produced three sets of regulations that arguably applied SORNA to pre-Act offenders: the “Interim Rule” in February 2007, Applicability of the Sex Offender Registration and Notification Act, 72 Fed. Reg. 8,894 (Feb. 28, 2007); the “SMART Guidelines” in July 2008, The National Guidelines for Sex Offender Registration and Notification, 73 Fed. Reg. 38,030 (July 2, 2008); and the “Final Rule” in December 2010, Applicability of the Sex Offender Registration and Notification Act, 75 Fed. Reg. 81,849 (Dec." }, { "docid": "7282289", "title": "", "text": "Clause power to create “a comprehensive national system for the registration of [sex] offenders,” 42 U.S.C. § 16901; the statute requires sex offenders to register, and to keep their registrations current, in each jurisdiction where they reside, work, or attend school. Id. §§ 16913(a) & (c). SORNA imposes criminal sanctions on convicted sex offenders subject to its registration requirements who travel in interstate commerce and knowingly fail to register or update their registrations. 18 U.S.C. § 2250(a). By its own terms, SORNA’s registration requirements applied automatically to individuals who committed a triggering sexual offense after the statute’s enactment in July 2006. The Attorney General was told to decide whether SORNA should be applied to those who committed their triggering sexual offense before SORNA’s enactment. 42 U.S.C. § 16913(d). The Attorney General ruled that it should so apply. But just when this approval became effective was the subject of dispute and was answered only recently by the Supreme Court in Reynolds v. United States, — U.S. -, 132 S.Ct. 975, 181 L.Ed.2d 935 (2012), resolving a circuit split on the matter. Id. at 981. In Reynolds the Supreme Court held that SORNA’s prohibition of travel and failure to register applied to pre-SORNA sexual offenders like Parks only where the travel and non-registration occurred after the Attorney General’s approval had occurred, rather than from the date of SOR-NA’S enactment. 132 S.Ct. at 984. The Supreme Court did not, however, determine whether this approval should be deemed effective in February 2007, when an Interim Rule was promulgated on an emergency basis to make SORNA applicable to pre-SORNA sexual offenses, or on August 1, 2008, when the so-called SMART guidelines issued by the Attorney General became effective. The circuits are in disagreement about this issue, and our circuit has not yet addressed it because, like four other circuits, we had previously believed that SORNA applied to pre-Act offenders from the moment of its enactment. However, several of our decisions resting on this premise were vacated after Reynolds: United States v. DiTomasso, 621 F.3d 17 (1st Cir.2010), vacated, — U.S. -, 132 S.Ct. 1533, 182" }, { "docid": "17463404", "title": "", "text": "prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b).”); 42 U.S.C. § 16913(b) (providing when sex offenders other than those who had already completed their sentences should initially register). In Shenandoah, this Court concluded that this provision automatically made SOR-NA’s registration requirements applicable without any action by the Attorney General to sex offenders who had been convicted before SORNA was enacted and who had already completed their prison sentences. 595 F.3d at 158. This meant that Reynolds’s obligation to register under SORNA was derived from the Act itself and not from the administrative rule promulgated by the Attorney General. Accordingly, Shenandoah required us to conclude that he could not challenge the legality of the administrative rule because the statute, not the rule, was the basis of his conviction. Reynolds, 380 Fed.Appx. at 126; Shenandoah, 595 F.3d at 163-64. The Supreme Court interpreted § 16913 otherwise. The Court held that the registration requirement did not automatically apply retroactively to sex offenders who committed their offense before SORNA was enacted. Instead, the Court explained that under § 16913, “the Act’s registration requirements do not apply to pre-Act offenders until the Attorney General specifies that they do apply.” Reynolds, 132 5.Ct. at 978. This means, contrary to this Court’s previous holding, that Reynolds’s obligation to register under SORNA does not derive from the Act itself but from the administrative rule promulgated by the Attorney General. We must now reach the merits of the claim Reynolds raises challenging the legality of that rule. Reynolds, 132 S.Ct. at 984 (“Whether the Attorney General’s Interim Rule sets forth a valid specification consequently matters in the case before us.”). B. Administrative History At issue here is the Attorney General’s February 28, 2007 Interim Rule that made SORNA’s registration requirements retroactive for all pre-SORNA offenders. Applicability of the Sex Offender Registration and Notification Act, 72 Fed.Reg. 8894-01, 8897 (Feb. 28, 2007) [hereinafter “Interim Rule”]. The Attorney General issued this Interim Rule seven months after SORNA delegated authority to him to make SOR-NA" }, { "docid": "23138435", "title": "", "text": "has the authority to “specify the applicability” of SORNA only as regards sex offenders who were convicted of their offense prior to SORNA’s enactment, he can prescribe rules for the registration both of any pre-SORNA offenders and of other categories of sex offender (i.e., groups of offenders who committed their offense after enactment of SORNA) who meet the specified criterion, namely the inability to meet the initial registration requirements of subsection (b). Most of these, presumably, are offenders whose states did not have a SOR-NA-compliant registration system in place at the time of their offense. There is no grammatical reason to limit the category of pre-SORNA offenders to those who are unable to comply with subsection (b), for purposes of either clause. Because there is no ambiguity, there is no need to look to the subtitle, the statutory purpose or context, or any other secondary interpretive aids. There is nothing irrational or counterproductive about this straightforward interpretation. SORNA’s registration requirement applies to all sex offenders, whether their offense was committed before or after the effective date. But the criminal penalties of the Act are triggered by the offender’s travel in interstate commerce. 18 U.S.C. § 2250(a)(1)(B). This Court has held, and the majority does not dispute, that offenders who completed their travel in interstate commerce prior to July 27, 2006 face no criminal penalties for failure to register. United States v. Husted, 545 F.3d 1240 (10th Cir.2008). We rejected the government’s argument that it was absurd to interpret the statute in this limited way. Under the plain meaning of the statute, offenders like Mr. Hinckley, who completed their interstate travel during the seven months it took the Attorney General to issue regulations under § 16913(d), are in the same legal position as Mr. Husted. Not until they travel interstate after the effective date of the Act (which in their case is the date of the Attorney General’s regulation) will they face criminal penalties for failure to register. The majority’s argument that this limitation would exempt “virtually the entire existing sex offender population” and “would directly contradict the Act’s stated purpose" }, { "docid": "7282290", "title": "", "text": "circuit split on the matter. Id. at 981. In Reynolds the Supreme Court held that SORNA’s prohibition of travel and failure to register applied to pre-SORNA sexual offenders like Parks only where the travel and non-registration occurred after the Attorney General’s approval had occurred, rather than from the date of SOR-NA’S enactment. 132 S.Ct. at 984. The Supreme Court did not, however, determine whether this approval should be deemed effective in February 2007, when an Interim Rule was promulgated on an emergency basis to make SORNA applicable to pre-SORNA sexual offenses, or on August 1, 2008, when the so-called SMART guidelines issued by the Attorney General became effective. The circuits are in disagreement about this issue, and our circuit has not yet addressed it because, like four other circuits, we had previously believed that SORNA applied to pre-Act offenders from the moment of its enactment. However, several of our decisions resting on this premise were vacated after Reynolds: United States v. DiTomasso, 621 F.3d 17 (1st Cir.2010), vacated, — U.S. -, 132 S.Ct. 1533, 182 L.Ed.2d 151 (2012); United States v. Stevens, 640 F.3d 48 (1st Cir.2011), vacated, — U.S. -, 132 S.Ct. 1739, 182 L.Ed.2d 525 (2012); United States v. Gagnon, 621 F.3d 30 (1st Cir.2010), vacated, — U.S. -, 132 S.Ct. 1533, 182 L.Ed.2d 151 (2012). Conversely, the Supreme Court denied certiorari on a similar case from this circuit in which the offender traveled after the Interim Rule but before the SMART regulations. United States v. Thompson, 431 Fed.Appx. 2 (1st Cir.2011), cert. denied, - U.S. -, 132 S.Ct. 1739, 182 L.Ed.2d 534 (2012). This might suggest that the Supreme Court agrees with the circuits supporting the Interim Rule date but it has not formally decided the issue and we have no occasion to resolve it here, since Parks would be covered whether the Interim Rule date or the 2008 SMART guidelines date controlled. Thus, Parks pled guilty to an indictment alleging that he traveled in interstate commerce and knowingly failed to update his registration between November 21, 2009, and February 7, 2010, long after the 2008 SMART" }, { "docid": "20294166", "title": "", "text": "the relevant changes. § 16913(c). Section 16913 also explains the requirements for sex offenders registering for the first time. § 16913(b). It further provides that [t]he Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before July 27, 2006 or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b) of this section. § 16913(d). SORNA makes it a crime to violate its registration requirements. The Act provides that a person who is (1) “required to register under” SORNA, (2) “travels in interstate or foreign commerce” or is a sex offender under federal, tribal, D.C., or U.S. territorial law, and (3) “knowingly fails to register or update registration as required by [SORNA] shall be fined” and/or imprisoned for up to ten years. 18 U.S.C. § 2250(a). SORNA became effective on July 27, 2006. On February 28, 2007, U.S. Attorney General Alberto Gonzales issued an immediately effective interim rule applying SORNA “to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of [the] Act.” 28 C.F.R. § 72.3. The Attorney General promulgated this regulation without notice and comment and without a thirty-day advance publication of its final form, disposing of these requirements based on the “good cause” provisions of the APA, 5 U.S.C. § 553(b)(B), (d)(3). See 72 Fed. Reg. 8894, 8896. At the same time, the Attorney General stated that comments would be accepted until April 30, 2007. Id. at 8895. On May 30, 2007, the Attorney General published proposed comprehensive guidelines for SORNA, referred to as the “SMART” guidelines after the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking. 72 Fed. Reg. 30,210. The preliminary guidelines reiterated that “SORNA’s requirements apply to all sex offenders, including those whose convictions predate the enactment of the Act.” Id. at 30,212. Comments were to be accepted through August 1, 2007. Id. at 30,210. On July 2," }, { "docid": "7282288", "title": "", "text": "had been living at a motel in Maine since November 21, 2009, and that there were warrants out for his arrest on a probation-violation charge in Massachusetts, apparently for having failed to update his registration in that state in July 2009. He was arrested and was returned to Massachusetts. There he admitted to the Massachusetts probation violation and was sentenced by a Massachusetts state court to two and a half years in prison. In May 2010, Parks was indicted by a federal grand jury in Maine on one count of traveling in interstate commerce and knowingly failing to update a registration as required by SORNA, 18 U.S.C. § 2250(a). After the district court denied Parks’ several challenges to SORNA, he pled guilty conditioned on his right to appeal the legal objections urged in his failed motion to dismiss. Thereafter he was sentenced by the district court to 35 months’ imprisonment consecutive to his state sentence for violating probation. He now appeals to pursue his reserved contentions. SORNA was enacted in July 2006 under Congress’ Commerce Clause power to create “a comprehensive national system for the registration of [sex] offenders,” 42 U.S.C. § 16901; the statute requires sex offenders to register, and to keep their registrations current, in each jurisdiction where they reside, work, or attend school. Id. §§ 16913(a) & (c). SORNA imposes criminal sanctions on convicted sex offenders subject to its registration requirements who travel in interstate commerce and knowingly fail to register or update their registrations. 18 U.S.C. § 2250(a). By its own terms, SORNA’s registration requirements applied automatically to individuals who committed a triggering sexual offense after the statute’s enactment in July 2006. The Attorney General was told to decide whether SORNA should be applied to those who committed their triggering sexual offense before SORNA’s enactment. 42 U.S.C. § 16913(d). The Attorney General ruled that it should so apply. But just when this approval became effective was the subject of dispute and was answered only recently by the Supreme Court in Reynolds v. United States, — U.S. -, 132 S.Ct. 975, 181 L.Ed.2d 935 (2012), resolving a" }, { "docid": "8165131", "title": "", "text": "immediately provide it to all other jurisdictions in which the offender is required to register in order to achieve a comprehensive national registry. Id. Relevant to this appeal, SORNA makes it a federal crime for any person who is required to register, and who travels in interstate or foreign commerce, to knowingly fail to register or to update registration. 18 U.S.C. § 2250(a). Once a sex offender is subject to SORNA’s registration requirements, that offender can be convicted under § 2250 if he thereafter engages in interstate or foreign travel and then fails to register. See Carr v. United States, 560 U.S. 438, 447, 130 S.Ct. 2229, 176 L.Ed.2d 1152 (2010). The statute defines “sex offender” to include individuals who were convicted of sex offenses prior to the enactment of SORNA. 42 U.S.C. § 16911(1) (defining “sex offender” as “an individual who was convicted of a sex offense”); see also Reynolds, 132 S.Ct. at 978 (noting that SORNA “defines the term ‘sex offender’ as including these pre-Act offenders”). However, SORNA does not set forth the registration procedures for pre-SORNA sex offenders. Instead, in 42 U.S.C. § 16913(d), Congress delegated to the United States Attorney General the authority to determine whether SORNA’s registration requirements would apply retroactively to pre-SORNA sex offenders. Section 16913(d) provides: The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders.... 42 U.S.C. § 16913(d). On February 28, 2007, pursuant to the authority delegated to it by § 16913(d), the Attorney General issued an immediately effective rule establishing that “[t]he requirements [of SORNA] apply to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of the Act.” Applicability of the Sex Offender Registration and Notification Act, 72 Fed. Reg. 8894-01, 8897 (Feb. 28, 2007) (codified at 28 C.F.R. § 72.3). The Attorney General subsequently issued proposed guidelines for the interpretation and implementation" }, { "docid": "4894759", "title": "", "text": "Federal Law ....” See 18 U.S.C. § 2250(a); (Docket No. 13). He claims that SORNA does not include state sexual offenses as qualifying SORNA sex offenses. (Docket No. 11). A plain reading of the statute shows that conviction under 18 U.S.C. § 2250(a) requires either a federal sex offense conviction or interstate travel after a state conviction requiring registration, not both. See 18 U.S.C. § 2250(a). SORNA applies to a defendant with a state law conviction requiring registration as a sex offender who travels in interstate commerce and knowingly fails to register or update his registration as required. See, e.g., Pitts, 2007 WL 3353423, at *3. LeTourneau was charged with being a person required to register under SORNA, who traveled in interstate commerce, and subsequently failed to register as required. (Docket Nos. 5, 13). The indictment sufficiently notified the LeTourneau of the charge against him. (See Docket No. 5). VI. NON-DELEGATION DOCTRINE Finally, LeTourneau argues that SOR-NA improperly delegates legislative powers to the Executive Branch by directing the Attorney General to decide whether and how a sex offender with a conviction pre-dating SORNA will be subject to its requirements in violation of the non-delegation doctrine. See 42 U.S.C. § 16913(d); (Docket No. 11). Congress clearly set forth the purpose of SORNA in 42 U.S.C. § 16901. See Lovejoy, 2007 WL 2812681, at *3; Mason, at 928. The Attorney General was only given the power “to promulgate regulations under the most limited of circumstances,” therefore, the authority Congress delegated to the Attorney General was “no so broad as to be violative of the non-delegation doctrine.” Hinen, 487 F.Supp.2d at 752; see May, 2007 WL 2790388, at *6, Lovejoy, at 1035; Mason, at 928. Every District Court considering whether 42 U.S.C. § 16913(d) violates the non-delegation doctrine have declined to find it an unconstitutional congressional delegation of authority. See Pitts, 2007 WL 3353423, at *7-8; Gill, at 1348; Lovejoy, at 1035; May, 2007 WL 2790388, at *6; Kelton, 2007 WL 2572204, at *1; Mason, at 928; Madera, 474 F.Supp.2d at 1261. This Court agrees with those holdings that SORNA is not an" }, { "docid": "23493803", "title": "", "text": "38,-045 (2008)). To address this problem, in 2006, Congress enacted SORNA “to succeed and enhance the registration requirements of the Wetterling Act.” United States v. Begay, 622 F.3d 1187, 1190 (9th Cir.2010). SORNA is designed to improve the uniformity and effectiveness of sex-offender registration systems by, among other things, “creating federal criminal sanctions applicable to those who violate the Act’s registration requirements.” Reynolds, 132 S.Ct. at 978. SORNA’s registration requirement, codified at 42 U.S.C. § 16913, requires all state and federal sex offenders, to “register, and keep the registration current, in each jurisdiction where the offender” resides, works, or goes to school. A person who fails to register as required by § 16913 may be criminally prosecuted ' under 18 U.S.C. § 2250(a). This provision requires the government to prove that the defendant: (1) is required to register under SORNA, (2) is a “sex offender” due to a conviction under federal law (of the law ■ of ■ certain other listed jurisdictions) or a person who “travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country” and, (3) knowingly failed to register or update a registration as required by SORNA. A sex offender shall register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student. For initial registration purposes only, a sex offender shall also register in the jurisdiction in which convicted if such jurisdiction is different from the jurisdiction of residence. Although SORNA imposed various requirements on sex offenders, it did not provide that its registration requirements would apply retroactively to sex offenders convicted before July 27, 2006, SORNA’s effective date. United States v. Valverde, 628 F.3d 1159, 1162 (9th Cir.2010). Instead, it gave the Attorney General the authority to enact regulations specifying the applicability of SORNA’s registration requirements to pre-Act offenders. Id. (citing 42 U.S.C. § 16913(d)). In Valverde, we held that the Attorney General did not complete the steps necessary to make SORNA retroactive until August 1, 2008. Id. at 1169. Therefore, the requirements of SORNA became" }, { "docid": "15163271", "title": "", "text": "convicted before the enactment of this Act [enacted July 27, 2006] or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b). 42 U.S.C. § 16913(a)-(d). On February 28, 2007, the Attorney General issued an interim rule, effective February 28, 2007, which states: The requirements of [SORNA] apply to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to enactment of that Act. 28 C.F.R. § 72.3. In May, the defendant traveled in interstate commerce after enactment of SOR-NA but before the Attorney General made the statute retroactive. 535 F.3d at 915. The defendant argued that SORNA did not apply to him because his interstate travel occurred prior to the Attorney General’s interim ruling. Id. We disagreed holding that SORNA’s registration requirements applied to the defendant at the time that SORNA was enacted in 2006. Id. at 916. We concluded that the Attorney General’s interim rule did not apply to the defendant because he was required to keep his registration current prior to the enactment of SORNA. Id. at 919. Therefore, the interim rule did not affect the defendant. Id. Zuniga, who traveled in interstate commerce after SORNA’s enactment but before the Attorney General issued its interim rule, is in the same position as was the defendant in May. Therefore, like the defendant in May, Zuniga was already obligated to register under SORNA, and the interim rule did not affect this obligation. Because we may not overrule prior precedent, Drake, 812 F.2d at 400, we hold that SORNA applied to Zuniga at the time he traveled in interstate commerce. Zuniga’s reliance on the Tenth Circuit decision in United States v. Husted, 545 F.3d 1240 (10th Cir.2008), in support of his position is misplaced. In Husted, the Tenth Circuit held SORNA to be inapplicable where the defendant traveled in interstate commerce before the Attorney General issued its interim rule and before the enactment of SORNA. Id. at 1241. Because Zuniga traveled" }, { "docid": "12244151", "title": "", "text": "a comprehensive national system for the registration of [sex] offenders.” 42 U.S.C. § 16901. Section 141(a) of SORNA, 18 U.S.C. § 2250(a), imposes a sentence of up to ten years of imprisonment for anyone who is required to register under SORNA, travels in interstate commerce, and knowingly fails to register as a sex offender in the new jurisdiction or update a registration as required by SOR-NA. Pursuant to Section 113, 42 U.S.C. § 16913, SORNA’s registration provision, a sex offender is required to register in any state where the offender resides, is an employee, or is a student, as well as the jurisdiction of his conviction if different from his residence. Congress did not determine whether SORNA would apply to offenders convicted prior to SORNA’s effective date of July 27, 2006. Rather, in Section 113(d), Congress assigned this determination to the Attorney General and authorized the Attorney General to promulgate regulations pertaining to the registration of sex offenders under SORNA. On February 28, 2007, the Attorney General issued an interim rule stating: “The requirements of the Sex Offender Registration and Notification Act apply to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of that Act.” 28 C.F.R. § 72.3 (emphasis added). Therefore, at the time of Defendant’s indictment, sex offenders were required -to comply with SORNA even if their convictions for sexual offenses occurred prior to the enactment of SORNA. See United States v. Hatcher, 560 F.3d 222, 229 (4th Cir.2009) (holding that SORNA’s registration requirements did not apply to pre-SORNA offenders until after the Attorney General issued the interim rule specifying the applicability of SORNA’s registration requirements to those offenders); see also United States v. Smith, 528 F.Supp.2d 615, 620 (S.D.W.Va.2007) (Goodwin, C.J.). Since the enactment of SORNA, the constitutionality of the Act has been considered by various district courts and courts of appeal. In the vast majority of courts, SORNA has withstood constitutional challenges. However, neither the United States Supreme Court nor the Fourth Circuit has had occasion to provide guidance on the constitutional questions presented here." }, { "docid": "23160365", "title": "", "text": "jurisdiction where they reside, work, or attend school. 42 U.S.C.A. § 16913(a) (West 2008). Sex offenders are required to initially register in one of two ways: if the sex offender was sentenced to a term of imprisonment for his underlying offense, he must register before completing the sentence of imprisonment for that offense; otherwise, the sex offender must register within three days of being sentenced for the offense. 42 U.S.C.A. § 16913(b) (West 2008). Following the initial registration, sex offenders must keep their registration current by notifying at least one jurisdiction where they are required to register of all changes of name, residence, employment, or student status within three days of the change. 42 U.S.C.A. § 16913(c) (West 2008). Of particular importance to this appeal is 42 U.S.C.A. § 16913(d) (West 2008), titled, “Initial registration of sex offenders unable to comply with subsection (b) of this section.” This subsection is located within the same section as the aforementioned registration requirements. According to § 16913(d), The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before July 27, 2006 [SORNA’s enactment date] or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b) of this section. To enforce its registration provisions, SORNA includes 18 U.S.C. § 2250(a) (2006), which makes it a federal felony, punishable by up to ten years imprisonment, inter alia, for a person who is required to register under SORNA to travel in interstate commerce and knowingly fail to register or update his sex offender registration. On February 28, 2007, after the Appellants had committed the acts giving rise to their indictments, the Attorney General issued an interim rule stating that the registration requirements of SORNA applied to all convicted sex offenders, including those offenders who were convicted of sex offenses prior to the enactment of SORNA (“pre-SORNA offenders”). 72 Fed.Reg. 8894, 8896 (Feb. 28, 2007). According to the Attorney General, the purpose of" } ]

[ { "docid": "17651884", "title": "", "text": "the first to invent the claimed subject matter. See 35 U.S.C. § 135(a) (1994). To determine priority, the PTO Board may evaluate “not only the respective dates of conception and reduction to practice of the invention, but also the reasonable diligence of one who was first to conceive and last to reduce to practice, from a time prior to conception by the other.” 35 U.S.C. § 102(g) (1994). Priority of invention, therefore, belongs to the first party to reduce the invention to practice unless the other party can establish that it was the first to conceive the invention and that it exercised reasonable diligence in later reducing the invention to practice. See Price v. Symsek, 988 F.2d 1187, 1190, 26 USPQ2d 1031, 1033 (Fed. Cir.1993). Priority and its constituent issues of conception and reduction to practice are questions of law predicated on subsidiary factual findings. See Cooper v. Goldfarb, 154 F.3d 1321, 1327, 47 USPQ2d 1896, 1901 (Fed.Cir.1998). Accordingly, we review de novo the PTO Board’s legal conclusions regarding priority, conception, and reduction to practice. See Hybritech Inc. v. Monoclonal Antibodies, Inc., 802 F.2d 1367, 1376, 231 USPQ 81, 87 (Fed.Cir.1986). In an interference proceeding, a party seeking to establish an actual reduction to practice must satisfy a two-prong test: (1) the party constructed an embodiment or performed a process that met every element of the interference count, and (2) the embodiment or process operated for its intended purpose. See Cooper, 154 F.3d at 1327, 47 USPQ2d at 1901; Estee Lauder Inc. v. L’Oreal S.A., 129 F.3d 588, 593, 44 USPQ2d 1610, 1614 (Fed. Cir.1997) (requiring that the invention work for its intended purpose before an actual reduction to practice exists); Correge v. Murphy, 705 F.2d 1326, 1329, 217 USPQ 753, 755 (Fed.Cir.1983) (requiring that the embodiment include every element of the count to have an actual reduction to practice). With regard to the first prong, this Court’s well-established precedent requires that the constructed embodiment or performed process include the precise elements recited in the count. See Correge, 705 F.2d at 1329, 217 USPQ at 755; Wetmore v. Quick, 536" } ]

[ { "docid": "13352993", "title": "", "text": "device if only ‘insubstantial differences’ distinguish the missing claim element from the corresponding aspects of the accused device,” Sage Prods., Inc. v. Devon Indus. Inc., 126 F.3d 1420, 1423 (Fed.Cir.1997). “[T]he doctrine of equivalents must be applied to individual elements of the claim, not to the invention as a whole. It is important to ensure that the application of the doctrine, even as to an individual element, is not allowed such broad play as to effectively eliminate that element in its entirety.” Warner-Jenkin-son Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 29, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). BSC asks the Court to grant its motion for judgment as a matter of law as to the jury’s finding of infringement under the doctrine of equivalents. In the alternative, BSC also asks for a new trial on this issue. BSC is undoubtedly correct that different conclusions could be drawn from the evidence presented at trial as to infringement under the doctrine of equivalents. The parties, however, chose to try this case before a jury, and the jury’s verdict is supported by substantial evidence and is not contrary to the clear weight of the evidence. Cordis contends that it presented a theory at trial that all of the limitations of Claim 7 of the Fontirroche patent were literally infringed by BSC, and that a single limitation — requiring the inner and outer guide wire tube layers to be chemically bonded to each other — could also be found to have been infringed under the doctrine of equivalents. As to that limitation, the jury could have found that the inner and outer layers of BSC’s Maverick products were bound together in an equivalent manner to that claimed in the Fontir-roche patent. The jury heard evidence that BSC’s products featured a chemical bond between the tie layer and the Pebax outer layer, see, e.g., Cordis’ Opposition to BSC’s Motion for JMOL at ex. B, Tr. 610-12; see also id. at ex. B., Tr. 625, and that the entanglement bond between the tie layer and the HDPE inner layer was substantially similar to" }, { "docid": "4067169", "title": "", "text": "publication of the Erb article. Thus, the critical date which Loral must antedate is December 3,1973. As recently clarified by the Federal Circuit, Loral’s attempt to antedate a publication must satisfy priority rules encountered primarily in the interference context. Mahurkar v. C.R. Bard, Inc., 79 F.3d 1572, 1576-77 (Fed.Cir.1996). In Mahurkar, the Federal Circuit stated the proof required to antedate a reference. An inventor may gain priority by showing that he reduced the invention to practice before the publication date of the reference. Id. at 1577. Alternatively, the inventor may gain priority by showing his conception of the invention before publication of the reference, coupled with reasonable diligence from a date before publication to reduction to practice. Id. at 1577-78. Here, the patentee, Loral, bears the burden of persuasion on the status of the Erb article and the Erb/Su work as prior art by a preponderance of the evidence. Wilson, 904 F.2d at 685. The initial priority inquiry is reduction to practice. To show actual reduction to practice, an inventor must demonstrate that the invention works for its intended purpose. Scott v. Finney, 34 F.3d 1058, 1061 (Fed.Cir.1994). Depending on the invention and the problem it solves, test results may be necessary to show the invention worked for its intended purpose. Mahurkar, 79 F.3d at 1578. As noted by Scott and Mahurkar, actual reduction to practice for a complex invention such as the CCD process in this case requires test results that demonstrate the processes will work for their intended purpose. Scott, 34 F.3d at 1062, Mahurkar, 79 F.3d at 1578; Koval v. Bodenschatz, 463 F.2d 442, 447 (CCPA 1972) (“[T]here must be a functional relationship between the test conditions and the intended functional setting.”); see also Holmwood v. Sugavanam, 948 F.2d 1236, 1238-40 (Fed.Cir.1991); DSL Dynamic Sciences Ltd. v. Union Switch & Signal, Inc., 928 F.2d 1122, 1125 (Fed.Cir.1991); Elmore v. Schmitt, 278 F.2d 510, 513 (CCPA 1960). Loral contends Dr. Amelio reduced to practice the process claimed in the ’674 patent at least as early as September 1973. Loral points to a mask overlay set, a run sheet," }, { "docid": "13352962", "title": "", "text": "of the Fontirroche patent, were submitted to the jury. Also submitted to the jury were preliminary factual questions relating to the obviousness of the Kastenhofer patents. The jury found for Cordis on its invalidity contention that B SC did not reduce the invention of the Kastenhofer patents to practice in January 1992 and that Christine Byam was not correctly named as a joint inventor of the Kasten-hofer patents. The jury also found that BSC infringed Claim 7 of the Fontirroche patent under the doctrine of equivalents. The question of damages for BSC’s infringement of the Fontirroche patent was not submitted to the jury because Cordis inexplicably chose not to call its damages expert and therefore failed to put on evidence regarding a reasonable royalty rate. Now before the Court are: (1) BSC’s renewed motion for judgment as a matter of law and motion for a new trial as to the validity of the Kastenhofer patents; (2) BSC’s renewed motion for judgment as a matter of law and motion for a new trial as to the jury’s finding of infringement of the Fontirroche patent; (3) Cordis’ renewed motion for judgment as a matter of law as to the jury’s findings on both patents; and (4) Cordis’ motion for damages and equitable relief stemming from BSC’s infringement of the Fontirroche patent. LEGAL STANDARD I. Renewed motion for judgment as a matter of law: Rule 50(b) Federal Rule of Civil Procedure 50(b) provides: If the court does not grant a motion for judgment as a matter of law made under Rule 50(a), the court is considered to have submitted the action to the jury subject to the court’s later deciding the legal questions raised by the motion. No later than 10 days after the entry of judgment ... the movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59. In ruling on the renewed motion, the court may: (1) allow judgment on the verdict, if the jury returned a verdict; (2) order a new trial;" }, { "docid": "13352969", "title": "", "text": "new trial, as to whether Byam was properly named as a joint inventor of the Kastenhofer patents. Cordis now renews its motion for judgment as a matter of law as to whether the Kastenhofer patents are invalid for obviousness. The Court will address each issue in turn. A. Reduction to practice of the Kas-tenhofer patents BSC argues that the Court should order a new trial on the issue of whether BSC reduced to practice the claimed invention of the Kastenhofer patents in January 1992 because the jury instructions regarding the “intended purpose” of the Kasten-hofer patents were erroneous and because the jury’s verdict was against the great weight of the evidence. Cordis argues in response that the instructions’ description of the “intended purpose” was correct and that the jury’s verdict is supported by the evidence presented at trial. “A reduction to practice does not occur until an inventor, or perhaps his agent, knows that the invention will work for its intended purpose.” Estee Lauder Inc. v. L’Oreal, S.A., 129 F.3d 588, 593 (Fed.Cir.1997); see also Manning v. Paradis, 296 F.3d 1098, 1102 (Fed.Cir.2002). Reduction to practice does not require the invention, when tested, to “be in a commercially satisfactory stage of development.” Barmag Barmer Maschinenfabrik AG v. Murata Mach., Ltd., 731 F.2d 831, 838 (Fed.Cir.1984) (internal quotation marks omitted). BSC argues the Court erroneously identified the intended purpose of the claimed invention of the Kastenhofer patents when it stated, in both the preliminary and final jury instructions, that the intended purpose was “to present an interventional low profile balloon catheter that can be moved into tortuous vessels with a guidewire inside the catheter without the risk of the guidewire being captured or clogging in the catheter.” Selwyn Decl. at ex. 1, Tr. 97-98 (emphasis added). BSC takes issue with the last phrase of this instruction, arguing that the Kastenhofer claims do not require that the guide wire not be captured or clogged in the catheter. Instead, BSC argues the Court should have adopted its definition of the intended purpose as “a catheter with a low-friction inner tube that was capable" }, { "docid": "13352967", "title": "", "text": "Landes Const. Co., 833 F.2d at 1371-72. The authority to grant a new trial under Rule 59 “is confided almost entirely to the exercise of discretion on the part of the trial court.” Allied Chem. Corp. v. Daiflon, 449 U.S. 33, 36, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980) (per curiam); see Vickery v. Fisher Governor Co., 417 F.2d 466, 470 (9th Cir.1969) (trial court has “wide judicial discretion” in considering new trial motion). A trial court may grant a motion for a new trial if the verdict is “contrary to the clear weight of the evidence, or is based upon evidence which is false, or to prevent, in the sound discretion of the trial judge, a miscarriage of justice.” Roy v. Volkswagen of Am., Inc., 896 F.2d 1174, 1176 (9th Cir.1990) (quoting Hanson v. Shell Oil Co., 541 F.2d 1352, 1359 (9th Cir.1976)). A court may grant a motion for a new trial where the jury instructions were erroneous or inadequate, so long as the moving party demonstrates that it made a request for alternative instructions that could have corrected the “fatal flaws” in the instructions that were given. Chiron Corp. v. Genentech, Inc., 363 F.3d 1247, 1258 (Fed.Cir.2004). DISCUSSION I. Invalidity of the Kastenhofer patents The first issue raised by the parties, in competing motions, is whether the Court should find that the Kastenhofer patents are invalid. The jury found that Cordis proved, by clear and convincing evidence, that (1) BSC did not have a reduction to practice of the invention of the Kastenhofer patents in January 1992, and (2) Christine Byam was not correctly named as a joint inventor of the Kastenhofer patents. Although the ultimate question regarding the obviousness of the Kastenhofer patents is a decision for the Court, the jury also answered preliminary factual questions having to do with secondary considerations of the obviousness of the Kastenhofer pat ents. BSC now moves for a new trial as to whether the Kastenhofer patents were reduced to practice in January 1992. BSC also moves for judgment as a matter of law or, in the alternative, for a" }, { "docid": "22255799", "title": "", "text": "25, 1923, when appellees entered the field. Both parties introduced testimony. All of the interference tribunals of the Patent Office united in finding the following: That appellant was the first to eoneeive and disclose, but the last to reduce the invention to practice; that there was not the requisite proof of conception or reduction to practice by appellees prior to their filing date of May 25, 1923, and therefore said filing date must be held to be the date of conception and a constructive reduction to practice; £hat appellees actually reduced the invention to practice between September 20 and October 1, 1923; that appellant reduced the invention to practice in March, 1924; that appellant failed to exercise due diligence in reducing the invention to practice; that appellant failed to establish that he had disclosed the invention to the party Leininger, as charged, prior to appellees’ date of conception; that appellees were joint inventors of the invention ; that by reason of lack of due diligence upon the part of appellant in reducing the invention to practice priority should be awarded to appellees, the senior parties, although appellant’s date of conception and disclosure was prior to that of appellees. The findings of fact of the three tribunals of the Patent Office, being unanimous, will not be disturbed- by this court unless manifestly wrong. Leonard v. Everett, 52 App. D. C. 90, 281 F. 594; Greenawalt v. Dwight, 49 App. D. C. 82, 258 F. 982. Under this rule we must accept the findings of the Patent Office that appellant did not disclose the invention to Leininger, and that appellees were joint inventors of the invention in issue, as set out in their application, for clearly the evidence and the law warranted such findings. As to joint invention by appellees, the rule is that an application in due form, made by two persons claiming to be-joint inventors, is prima facie evidence that they were such. Lemp v. Randall, 33 App. D. C. 430. As to the alleged disclosure of the invention by appellant to Leininger, the evidence was sharply contradictory, and we-" }, { "docid": "13352975", "title": "", "text": "risk of the guidewire being captured or clogging in the catheter.... Testing must show that there is a probability that the invention can be used for its intended purpose .... Reduction to practice do [sic] not require that the invention, when tested, be a commercial product.” Cordis’ Opposition to BSC’s Renewed Motion for JMOL at ex. B, Tr.2005-06. The strong wording of the final instructions was sufficient to correct any incorrect impressions the jury might have had about BSC’s need to achieve perfection when testing its catheter. The Court DENIES BSC’s motion for a new trial as to any incomplete preliminary jury instructions. BSC’s final argument is that the jury’s verdict must be set aside because the clear weight of the evidence demonstrates that BSC’s prototype catheters worked for the intended purpose identified by the Court “beyond a probability of fail ure.” Scott v. Finney, 34 F.3d 1058, 1062 (Fed.Cir.1994) (“Testing need not show utility beyond a possibility of failure, but only utility beyond a probability of failure.”). The Court disagrees. The evidence presented at trial was sufficient to support the jury’s verdict regarding reduction to practice, and the Court is not “left with the definite and firm conviction that a mistake has been committed” by the jury. Landes Const., 833 F.2d at 1371-72. For example, the jury could have found that there was not a probability that the invention could be used for its intended purpose based on contemporaneous evidence that in one of fifteen “crush tests,” the guide wire clogged in the tube. The jury heard testimony from an engineer that this single incident would have been “of significant concern” because “a piece of free plastic in somebody’s coronary vasculature is ... it’s just game over. That’s not okay.... As a designer you just wouldn’t accept that.” Cordis’ Opposition to BSC’s Renewed Motion for JMOL at ex. B, Tr. 833. The jury also heard evidence that in either ten or twelve of the fifteen tests, the catheters delaminated, see, e.g., id. at Tr. 824 (“there was evidence of those layers coming apart or peeling apart consistently”), and that" }, { "docid": "13352978", "title": "", "text": "joint inventor of the Kasten-hofer patents. BSC moves for judgment as a matter of law that Byam is a joint inventor of the patents and moves, in the alternative, for a new trial on the issue of joint inventorship. Cordis opposes the motion, arguing that the jury’s verdict was supported by sufficient evidence. The right to a patent may be lost if a person “did not himself invent the subject matter sought to be patented.” 35 U.S.C. § 102(f). Joint inventors “may apply for a patent jointly even though (1) they did not physically work together or at the same time, (2) each did not make the same type or amount of contribution, or (3) each did not make a contribution to the subject matter of every claim of the patent.” 35 U.S.C. § 116. The parties here agree that the Court correctly instructed the jury regarding joint inventorship when it stated that (1) each inventor must have made a contribution to the conception of at least one claim of the patent and (2) that the inventors must have collaborated in some fashion. See BSC’s Renewed Motion for JMOL at 13; Cordis’ Opposition to BSC’s Renewed Motion for JMOL at 2. The Court agrees with Cordis that substantial evidence supports the jury’s verdict regarding joint inventorship. The jury could have found either that Byam did not make a contribution to any claims of the patents or that Byam did not collaborate with Kastenhofer, or both, based on Kastenhofer’s testimony that he alone came up with the idea to use HDPE as the inner layer of a co-extruded guidewire tube. Kastenhofer’s testimony was inconsistent, but at various points he testified that: (1) it was his idea to use HDPE, DX 4018 at 98; (2) it was not Rich Goodin’s idea — and by extension not Byam’s idea— to use a two-layer catheter with an inner layer of HDPE and an outer layer of nylon, id. at 99; (3) he could not think of anything Byam contributed to the invention of the Kastenhofer patents, id. at 903-04; and (4) at the time" }, { "docid": "13352977", "title": "", "text": "such delamination created a risk of the guide wire becoming clogged, id. at Tr. 825; DX 4019 at 120-21. In addition, the jury also could have found that employees working on BSC’s prototype catheters themselves recognized that delamination and the risk of clogging created serious problems, such that the project could not go forward, see Cordis’ Opposition to BSC’s Renewed Motion for JMOL at 14, for safety reasons, id. at ex. B, Tr. 1407-08. For any of these reasons, the jury could have found that there was not a probability that the catheter could be used for its intended purpose. The Court DENIES BSC’s motion for a new trial on these grounds. Accordingly, the jury’s verdict that Cordis proved that the invention of the Kastenhofer patents was not reduced to practice in January 1992 stands, and the Court deems the Kasten-hofer patents invalid under 35 U.S.C. § 102(g)(2). B. Joint inventorship of the Kasten-hofer patents The jury found that Cordis proved, by clear and convincing evidence, that Christine Byam was not correctly named as a joint inventor of the Kasten-hofer patents. BSC moves for judgment as a matter of law that Byam is a joint inventor of the patents and moves, in the alternative, for a new trial on the issue of joint inventorship. Cordis opposes the motion, arguing that the jury’s verdict was supported by sufficient evidence. The right to a patent may be lost if a person “did not himself invent the subject matter sought to be patented.” 35 U.S.C. § 102(f). Joint inventors “may apply for a patent jointly even though (1) they did not physically work together or at the same time, (2) each did not make the same type or amount of contribution, or (3) each did not make a contribution to the subject matter of every claim of the patent.” 35 U.S.C. § 116. The parties here agree that the Court correctly instructed the jury regarding joint inventorship when it stated that (1) each inventor must have made a contribution to the conception of at least one claim of the patent and (2) that" }, { "docid": "13352994", "title": "", "text": "and the jury’s verdict is supported by substantial evidence and is not contrary to the clear weight of the evidence. Cordis contends that it presented a theory at trial that all of the limitations of Claim 7 of the Fontirroche patent were literally infringed by BSC, and that a single limitation — requiring the inner and outer guide wire tube layers to be chemically bonded to each other — could also be found to have been infringed under the doctrine of equivalents. As to that limitation, the jury could have found that the inner and outer layers of BSC’s Maverick products were bound together in an equivalent manner to that claimed in the Fontir-roche patent. The jury heard evidence that BSC’s products featured a chemical bond between the tie layer and the Pebax outer layer, see, e.g., Cordis’ Opposition to BSC’s Motion for JMOL at ex. B, Tr. 610-12; see also id. at ex. B., Tr. 625, and that the entanglement bond between the tie layer and the HDPE inner layer was substantially similar to a chemical bond, see id. at ex. B, Tr. 628-29. While there are obviously some differences between a single chemical bond and a chemical bond combined with an entanglement bond, the jury reasonably could have found that these differences were insubstantial under the doctrine of equivalents. The Court also rejects BSC’s arguments that Cordis could not benefit from the doctrine of equivalents. BSC argues that the doctrine of equivalents, as applied here, reads out of the Fontirroche patent the requirement of a chemical bond, but evidence put forth at trial clearly supports the finding that there was a chemical bond in BSC’s products. In addition, the Court does not agree that, in distinguishing the Fontirroche patent from other patents featuring no chemical bonds, Cordis is estopped from arguing the equivalency of an invention featuring a chemical bond. The Court agrees with Cordis that language in Claim 7 of the Fontirroche patent discussing the use of Plexar as either a tie layer or a layer itself merely states a preferred and nonpreferred embodiment of the claim," }, { "docid": "13352976", "title": "", "text": "trial was sufficient to support the jury’s verdict regarding reduction to practice, and the Court is not “left with the definite and firm conviction that a mistake has been committed” by the jury. Landes Const., 833 F.2d at 1371-72. For example, the jury could have found that there was not a probability that the invention could be used for its intended purpose based on contemporaneous evidence that in one of fifteen “crush tests,” the guide wire clogged in the tube. The jury heard testimony from an engineer that this single incident would have been “of significant concern” because “a piece of free plastic in somebody’s coronary vasculature is ... it’s just game over. That’s not okay.... As a designer you just wouldn’t accept that.” Cordis’ Opposition to BSC’s Renewed Motion for JMOL at ex. B, Tr. 833. The jury also heard evidence that in either ten or twelve of the fifteen tests, the catheters delaminated, see, e.g., id. at Tr. 824 (“there was evidence of those layers coming apart or peeling apart consistently”), and that such delamination created a risk of the guide wire becoming clogged, id. at Tr. 825; DX 4019 at 120-21. In addition, the jury also could have found that employees working on BSC’s prototype catheters themselves recognized that delamination and the risk of clogging created serious problems, such that the project could not go forward, see Cordis’ Opposition to BSC’s Renewed Motion for JMOL at 14, for safety reasons, id. at ex. B, Tr. 1407-08. For any of these reasons, the jury could have found that there was not a probability that the catheter could be used for its intended purpose. The Court DENIES BSC’s motion for a new trial on these grounds. Accordingly, the jury’s verdict that Cordis proved that the invention of the Kastenhofer patents was not reduced to practice in January 1992 stands, and the Court deems the Kasten-hofer patents invalid under 35 U.S.C. § 102(g)(2). B. Joint inventorship of the Kasten-hofer patents The jury found that Cordis proved, by clear and convincing evidence, that Christine Byam was not correctly named as a" }, { "docid": "23279202", "title": "", "text": "(Fed.Cir.1991). B. Cooper’s Conception and Reduction to Practice Conception is the formation, in the mind of the inventor, of a definite and permanent idea of the complete and operative invention, as it is thereafter to be applied in practice. See Hybritech, 802 F.2d at 1376, 231 U.S.P.Q. at 87 (citing Coleman v. Dines, 754 F.2d 353, 359, 224 U.S.P.Q. 857, 862 (Fed.Cir.1985)). A reduction to practice can be either a constructive reduction to practice, which occurs when a patent application is filed, or an actual reduction to practice. See Hybritech, 802 F.2d at 1376, 231 U.S.P.Q. at 87. In order to establish an actual reduction to practice, the inventor must prove that: (1) he constructed an embodiment or performed a process that met all the limitations of the interference count; and (2) he determined that the invention would work for its intended purpose. See UMC Elecs. Co. v. United States, 816 F.2d 647, 652, 2 U.S.P.Q.2d 1465, 1468 (Fed.Cir.1987) (“[T]here cannot be a reduction to practice of the invention ... without a physical embodiment which includes all limitations of the claim.”); Estee Lauder Inc. v. L’Oreal S.A., 129 F.3d 588, 593, 44 U.S.P.Q.2d 1610, 1614 (Fed.Cir.1997) (“[A] reduction to practice does not occur until the inventor has- determined that the invention will work for its intended purpose.”). Depending on the character of the invention and the problem it solves, determining that the invention will work for its intended purpose may require testing. See Mahurkar v. C.R. Bard Inc., 79 F.3d 1572, 1578, 38 U.S.P.Q.2d 1288, 1291 (Fed.Cir.1996). When testing is necessary, the embodiment relied upon as evidence of priority must actually work for its intended purpose. See Scott, 34 F.3d at 1061, 32 U.S.P.Q.2d at 1117. In addition, the inventor must contemporaneously appreciate that the embodiment worked and that it met all the limitations of the interference count. See Estee Lauder, 129 F.3d at 594-95, 44 U.S.P.Q.2d at 1615 (“[W]hen testing is necessary to establish utility, there must be recognition and appreciation that the tests were successful for reduction to practice to occur.”); Knorr v. Pearson, 671 F.2d 1368, 1375," }, { "docid": "13352968", "title": "", "text": "alternative instructions that could have corrected the “fatal flaws” in the instructions that were given. Chiron Corp. v. Genentech, Inc., 363 F.3d 1247, 1258 (Fed.Cir.2004). DISCUSSION I. Invalidity of the Kastenhofer patents The first issue raised by the parties, in competing motions, is whether the Court should find that the Kastenhofer patents are invalid. The jury found that Cordis proved, by clear and convincing evidence, that (1) BSC did not have a reduction to practice of the invention of the Kastenhofer patents in January 1992, and (2) Christine Byam was not correctly named as a joint inventor of the Kastenhofer patents. Although the ultimate question regarding the obviousness of the Kastenhofer patents is a decision for the Court, the jury also answered preliminary factual questions having to do with secondary considerations of the obviousness of the Kastenhofer pat ents. BSC now moves for a new trial as to whether the Kastenhofer patents were reduced to practice in January 1992. BSC also moves for judgment as a matter of law or, in the alternative, for a new trial, as to whether Byam was properly named as a joint inventor of the Kastenhofer patents. Cordis now renews its motion for judgment as a matter of law as to whether the Kastenhofer patents are invalid for obviousness. The Court will address each issue in turn. A. Reduction to practice of the Kas-tenhofer patents BSC argues that the Court should order a new trial on the issue of whether BSC reduced to practice the claimed invention of the Kastenhofer patents in January 1992 because the jury instructions regarding the “intended purpose” of the Kasten-hofer patents were erroneous and because the jury’s verdict was against the great weight of the evidence. Cordis argues in response that the instructions’ description of the “intended purpose” was correct and that the jury’s verdict is supported by the evidence presented at trial. “A reduction to practice does not occur until an inventor, or perhaps his agent, knows that the invention will work for its intended purpose.” Estee Lauder Inc. v. L’Oreal, S.A., 129 F.3d 588, 593 (Fed.Cir.1997); see also" }, { "docid": "13352980", "title": "", "text": "he talked with Goodin — and by extension by the time Goodin would have relayed any of Byams’ ideas — he already had the idea to use an inner layer of HDPE and an outer layer of nylon, DX 4021 at 97. The jury’s role was to weigh this testimony against conflicting testimony by Kastenhofer, and the jury could have found the above statements more believable than other statements to the contrary. The Court therefore DENIES BSC’s motion for judgment as a matter of law and BSC’s motion for a new trial on the question of joint inventorship. Because the jury found that Cordis proved by clear and convincing evidence that Byam was improperly named as a joint inventor of the Kastenhofer patents, the Court holds that, as a legal matter, the Kastenhofer patents are invalid under 35 U.S.C. § 102(f). See Pannu v. Iolab Corp., 155 F.3d 1344, 1349 (Fed.Cir.1998) (explaining that § 102(f) “mandates that a patent accurately list the correct inventors of a claimed invention”). Without ruling on the merits of such a motion, the Court notes that BSC could have invoked 35 U.S.C. § 256 to correct the inventorship of the Kastenhofer patents, see id. at 1350; see also 35 U.S.C. § 116, but has not done so. For this reason, the Court holds that the patent is invalid for failure to comply with § 102(f). Pannu, 155 F.3d at 1350-51 (“[I]f the patentee does not claim relief under the statute and a party asserting invalidity proves incorrect inventorship, the court should hold the patent invalid for failure to comply with section 102(f).”). C. Obviousness of the Kastenhofer patents As discussed above, the jury has already found, and the Court has affirmed, that the Kastenhofer patents are invalid on two independent grounds: BSC’s failure to reduce to practice prior to Cordis’ invention in the United States and the misjoin-der of Byam as an inventor of the patents. Notwithstanding these conclusions, Cordis asks the Court to also find the Kastenhofer patents invalid for obviousness. The Court declines. A patent can be invalidated through a showing that the" }, { "docid": "13352961", "title": "", "text": "artery, and an inner layer of .soft slippery material to allow the tube to slide easily over the guide wire. The Kastenhofer patents disclose that the bilayered tube is made by a process called coextrusion, in which the molten materials of the inner and outer layers are pushed out together through tubular dies so that the materials merge to form the required tubular structure. In Kastenhofer’s preferred embodiment, the outside layer is made of a polyamide (nylon), and the inner layer is made of high density polyethylene (“HDPE”). Also at issue in this case is BSC’s infringement of Cordis’ patents. Defendants counterclaimed that plaintiffs are infringing three Cordis-owned U.S. patents invented by Carlos Fontirroche and Jason Querns (collectively, the “Fontirroche patents”). As with the Kastenhofer patents, the Fontirroche patents are directed to a bilayered catheter tube design for balloon angioplasty catheters. A jury trial was held from October 9, 2007 to October 31, 2007. BSC’s argument that Cordis infringed the claims of the Kastenhofer patents, as well as Cordis’ argument that BSC infringed Claim 7 of the Fontirroche patent, were submitted to the jury. Also submitted to the jury were preliminary factual questions relating to the obviousness of the Kastenhofer patents. The jury found for Cordis on its invalidity contention that B SC did not reduce the invention of the Kastenhofer patents to practice in January 1992 and that Christine Byam was not correctly named as a joint inventor of the Kasten-hofer patents. The jury also found that BSC infringed Claim 7 of the Fontirroche patent under the doctrine of equivalents. The question of damages for BSC’s infringement of the Fontirroche patent was not submitted to the jury because Cordis inexplicably chose not to call its damages expert and therefore failed to put on evidence regarding a reasonable royalty rate. Now before the Court are: (1) BSC’s renewed motion for judgment as a matter of law and motion for a new trial as to the validity of the Kastenhofer patents; (2) BSC’s renewed motion for judgment as a matter of law and motion for a new trial as to the" }, { "docid": "13352979", "title": "", "text": "the inventors must have collaborated in some fashion. See BSC’s Renewed Motion for JMOL at 13; Cordis’ Opposition to BSC’s Renewed Motion for JMOL at 2. The Court agrees with Cordis that substantial evidence supports the jury’s verdict regarding joint inventorship. The jury could have found either that Byam did not make a contribution to any claims of the patents or that Byam did not collaborate with Kastenhofer, or both, based on Kastenhofer’s testimony that he alone came up with the idea to use HDPE as the inner layer of a co-extruded guidewire tube. Kastenhofer’s testimony was inconsistent, but at various points he testified that: (1) it was his idea to use HDPE, DX 4018 at 98; (2) it was not Rich Goodin’s idea — and by extension not Byam’s idea— to use a two-layer catheter with an inner layer of HDPE and an outer layer of nylon, id. at 99; (3) he could not think of anything Byam contributed to the invention of the Kastenhofer patents, id. at 903-04; and (4) at the time he talked with Goodin — and by extension by the time Goodin would have relayed any of Byams’ ideas — he already had the idea to use an inner layer of HDPE and an outer layer of nylon, DX 4021 at 97. The jury’s role was to weigh this testimony against conflicting testimony by Kastenhofer, and the jury could have found the above statements more believable than other statements to the contrary. The Court therefore DENIES BSC’s motion for judgment as a matter of law and BSC’s motion for a new trial on the question of joint inventorship. Because the jury found that Cordis proved by clear and convincing evidence that Byam was improperly named as a joint inventor of the Kastenhofer patents, the Court holds that, as a legal matter, the Kastenhofer patents are invalid under 35 U.S.C. § 102(f). See Pannu v. Iolab Corp., 155 F.3d 1344, 1349 (Fed.Cir.1998) (explaining that § 102(f) “mandates that a patent accurately list the correct inventors of a claimed invention”). Without ruling on the merits of such" }, { "docid": "13352974", "title": "", "text": "instructions were erroneous and incomplete because they may have led the jury to believe that reduction to practice required a showing that BSC’s invention was entirely successful and that there was no possibility of failure, i.e. a showing of perfection. The Court takes no position on whether the preliminary jury instructions were incomplete. Assuming, for the sake of argument, that they were incomplete, any error was remedied by the instructions given to the jury at the end of trial, to which BSC does not object. See Guam v. Ignacio, 852 F.2d 459, 461 (9th Cir.1988) (“Because the trial judge used the correct instruction at the end of trial, and because the correct instruction was the only instruction given to the jury to take with them to the jury room, it is presumed that the jury followed the correct instruction.”); see also Petrocelli v. Angelone, 248 F.3d 877, 888-89 (9th Cir. 2001) (same). Here, the Court’s final instructions correctly informed the jury that reduction to practice does not require “that the catheter must have absolutely no risk of the guidewire being captured or clogging in the catheter.... Testing must show that there is a probability that the invention can be used for its intended purpose .... Reduction to practice do [sic] not require that the invention, when tested, be a commercial product.” Cordis’ Opposition to BSC’s Renewed Motion for JMOL at ex. B, Tr.2005-06. The strong wording of the final instructions was sufficient to correct any incorrect impressions the jury might have had about BSC’s need to achieve perfection when testing its catheter. The Court DENIES BSC’s motion for a new trial as to any incomplete preliminary jury instructions. BSC’s final argument is that the jury’s verdict must be set aside because the clear weight of the evidence demonstrates that BSC’s prototype catheters worked for the intended purpose identified by the Court “beyond a probability of fail ure.” Scott v. Finney, 34 F.3d 1058, 1062 (Fed.Cir.1994) (“Testing need not show utility beyond a possibility of failure, but only utility beyond a probability of failure.”). The Court disagrees. The evidence presented at" }, { "docid": "13352996", "title": "", "text": "see DX 1, col. 3, Ins. 6-12; see also Cordis’ Opposition to BSC’s Motion for JMOL at ex. B, Tr. 624 (testimony of Cordis’ witness Lisa Pruitt regarding the language in question), and that BSC’s Maverick family of products would fall squarely into the nonpreferred embodiment. Accordingly, the Court also finds that Cordis did not dedicate the Maverick tie layer design to the public. As to the other limitations, which Cordis contends were literally, not equivalently, infringed, the Court finds that the jury’s verdict should not be disturbed. BSC argues that the use of HDPE without reactive groups cannot infringe the Fontir-roche patent because the specification states that “[h]igh density polyethylene is generally understood by those skilled in the art to have a density of at least about 0.94 g/cc. For purposes of this invention a polyethylene containing reactive groups and being of this density or greater is defined to be ‘high density polyethylene.’ ” DX 1, col. 7, Ins. 11-13. The plain import of this language is not, as BSC contends, that the patent’s definition of HDPE is limited only to HDPE containing reactive groups. Rather, the Court agrees with Cordis that this statement merely clarifies that HDPE with reactive groups will be included in the definition of HDPE, a reading that is supported by mention of HDPE elsewhere in the specification. See id. at col. 2, Ins. 21-23; Cordis’ Opposition to BSC’s Motion for JMOL at 6. The jury, therefore, could have found the material used in BSC’s products to literally infringe the Fontirroche patent. See Cordis’ Opposition to BSC’s Motion for JMOL at ex. B, Tr. 630. BSC also argues that the jury could not have found that BSC’s products infringe Claim 7 because the inner and outer layers of the guide wire tube do not physically touch. Claim 7 requires only that the two layers be different and be “bonded to each other,” not that they be in direct contact. DX 1, col. 8, In. 49. There was substantial evidence upon which the jury could have relied to find that the two layers were bonded to" }, { "docid": "13352995", "title": "", "text": "a chemical bond, see id. at ex. B, Tr. 628-29. While there are obviously some differences between a single chemical bond and a chemical bond combined with an entanglement bond, the jury reasonably could have found that these differences were insubstantial under the doctrine of equivalents. The Court also rejects BSC’s arguments that Cordis could not benefit from the doctrine of equivalents. BSC argues that the doctrine of equivalents, as applied here, reads out of the Fontirroche patent the requirement of a chemical bond, but evidence put forth at trial clearly supports the finding that there was a chemical bond in BSC’s products. In addition, the Court does not agree that, in distinguishing the Fontirroche patent from other patents featuring no chemical bonds, Cordis is estopped from arguing the equivalency of an invention featuring a chemical bond. The Court agrees with Cordis that language in Claim 7 of the Fontirroche patent discussing the use of Plexar as either a tie layer or a layer itself merely states a preferred and nonpreferred embodiment of the claim, see DX 1, col. 3, Ins. 6-12; see also Cordis’ Opposition to BSC’s Motion for JMOL at ex. B, Tr. 624 (testimony of Cordis’ witness Lisa Pruitt regarding the language in question), and that BSC’s Maverick family of products would fall squarely into the nonpreferred embodiment. Accordingly, the Court also finds that Cordis did not dedicate the Maverick tie layer design to the public. As to the other limitations, which Cordis contends were literally, not equivalently, infringed, the Court finds that the jury’s verdict should not be disturbed. BSC argues that the use of HDPE without reactive groups cannot infringe the Fontir-roche patent because the specification states that “[h]igh density polyethylene is generally understood by those skilled in the art to have a density of at least about 0.94 g/cc. For purposes of this invention a polyethylene containing reactive groups and being of this density or greater is defined to be ‘high density polyethylene.’ ” DX 1, col. 7, Ins. 11-13. The plain import of this language is not, as BSC contends, that the patent’s" }, { "docid": "13352986", "title": "", "text": "Robotic Vision Sys., Inc. v. View Eng’g, 189 F.3d 1370, 1377 (Fed. Cir.1999). In addition, three of the four prior art references — all except for the Shaffer patent — were before the six patent examiners who previously found that the Kastenhofer patents were not obvious. Although Cordis’ burden may be somewhat reduced because not all of the prior art was before the patent examiners, the Federal Circuit has explained that the burden “is especially difficult where the prior art was before the PTO examiner during prosecution of the application.” Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1467 (Fed.Cir.1990). Cordis’ primary argument is that a person of ordinary skill in the art would have easily combined the various teachings of the prior art to arrive at the Kastenhofer inventions. The Court finds significant evidence in the record to dispute Cordis’ contention, which appears to rely too heavily on hindsight. B SC has demonstrated, to the Court’s satisfaction, that its inventors, when faced with multiple paths that could have been taken, took the correct paths to arrive at the Kastenhofer catheters. Contrary to Cordis’ arguments that any number of multiple paths would have led to an obvious invention, a common sense approach suggests that there were multiple opportunities for BSC’s inventors to take wrong turns, and that it was not obvious or predictable what combination of elements would achieve the desired result. For instance, there was evidence presented that coatings, rather than a separate lubricious material, were often used to make the inside of the tube slippery, Mas-sa Deck at ex. 1, Tr. 1057, that many skilled in the art were not using nylon balloons at the time, id. at Tr. 1267 (Byam used polyester balloons); DX 4016 at 10, 13 (Wilkins used polyethylene balloons and considered using polyester), and that it may have been more common to choose methods other than co-extrusion to create an inner liner made of HDPE, such as pulling and shrinking the outer layer over the inner tubing, Massa Deck at ex. 1, Tr. 1685. The non-obviousness of which precise routes would lead" } ]

[ { "docid": "22092671", "title": "", "text": "has no jurisdiction over either the civil suit in the first of these two cases or the criminal prosecutions involved in the second. The so-called jurisdictional acts took place in “Indian country” over which the federal regime has exclusive jurisdiction until and unless the United States relinquishes it, and that has not been done here. Here, as in United States v. Mazurie, 419 U. S. 544 (1975), the acts were done within “Indian country” as defined in 18 U. S. C. § 1151, for they occurred on land “within the limits of” an Indian reservation “notwithstanding the issuance of any patent....” Petitioner DeCoteau is an enrolled member of the Sisseton-Wahpeton Sioux Tribe against whom South Dakota brought dependency and neglect proceedings in the state courts, seeking to terminate her parental authority over her minor children, also enrolled members of the tribe. The parties stipulated that all of the facts relevant to the court’s order took place on the Lake Traverse Reservation which was established under the Treaty of February 19, 1867, 15 Stat. 505. Approximately half of the incidents involved occurred on allotted Indian land, and half occurred on land patented to non-Indians. The South Dakota Supreme Court ruled that since some of the incidents pertaining to dependency and neglect occurred on nontrust land within the reservation, they happened on land in “non-Indian country.” 87 S. D. 555, 561, 211 N. W. 2d 843, 846 (1973). Petitioner Erickson is the warden of a South Dakota penitentiary having in custody the 10 respondents in No. 73-1500. They are all members of the Sisseton-Wahpe-ton Tribe, and their crimes were committed within the boundaries of the Lake Traverse Reservation but on land owned by non-Indians. The Court of Appeals, ruling on petitions for habeas corpus, held that South Dakota had no jurisdiction to try respondents, 489 F. 2d 99 (CA8 1973). The Treaty of Feb. 19, 1867, granted these Indians a permanent reservation with defined boundaries and the right to make their own laws and be governed by them subject to federal supervision, 15 Stat. 505, as amended. No more is asked here;" } ]

[ { "docid": "22853005", "title": "", "text": "Major Crimes Act establishes federal jurisdiction over 13 enumerated felonies committed by “[a]ny Indian . . . against the person or property of another Indian or other person ... within the Indian country.” § 1153(a). As the text of § 1153, see n. 2, supra, and our prior eases make clear, federal jurisdiction over the offenses covered by the Indian Major Crimes Act is “exclusive” of state jurisdiction. See United States v. John, 437 U. S. 634, 651 (1978); Seymour v. Superintendent of Washington State Penitentiary, 368 U. S. 351, 359 (1962); United States v. Kagama, 118 U. S. 375, 384 (1886). Congress has plenary authority to alter these jurisdictional guideposts, see Washington v. Confederated Bands and Tribes of Yakima Nation, 439 U. S. 463, 470-471 (1979), which it has exercised from time to time. This ease concerns the first major grant of jurisdiction to a State over offenses involving Indians committed in Indian country, the Kansas Act, which provides in full: “Jurisdiction is conferred on the State of Kansas over offenses committed by or against Indians on Indian reservations, including trust or restricted allotments, within the State of Kansas, to the same extent as its courts have jurisdiction over offenses committed elsewhere within the State in accordance with the laws of the State. “This section shall not deprive the courts of the United States of jurisdiction over offenses defined by the laws of the United States committed by or against Indians on Indian reservations.” Act of June 8, 1940, eh. 276, 54 Stat. 249 (codified at 18 U. S. C. §3243). Passed in 1940, the Kansas Act was followed in short order by virtually identical statutes granting to North Dakota and Iowa, respectively, jurisdiction to prosecute offenses com mitted by or against Indians on certain Indian reservations within their borders. See Act of May 31, 1946, ch. 279, 60 Stat. 229; Act of June 30, 1948, ch. 759, 62 Stat. 1161. Kansas asserted jurisdiction to prosecute petitioner for aggravated battery under the Kansas Act. Petitioner challenges the State’s jurisdiction in this regard. He contends that Congress added the second" }, { "docid": "9852336", "title": "", "text": "U.S.C. § 1153 which provides in pertinent part, “Any Indian who commits against the person ... of another Indian or other person . . . rape [and certain other crimes] . . . within the Indian country, shall be subject to the same laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.” [emphasis supplied.] Indian country as used in this section is defined by 18 U.S.C. § 1151 as all land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation . Defendants contend that the situs of the offenses was not within “Indian country” as required by § 1153 and defined in § 1151. Although the defendants concede that the location was once part of the Crow Creek Sioux Indian Reservation and, therefore, “Indian country,” they submit that this land was removed from reservation status by the Act of October 3, 1962, P.L. 87-735, 76 Stat. 704, hereafter “the Act.” Consequently, they argue that because the Crow Creek Sioux Reservation had been diminished by the taking of that part of the reservation where the offenses occurred for the construction of the Big Bend Dam and Reservoir project, subject matter jurisdiction over the offenses was vested in the State of South Dakota. Although it is undisputed that the park was within the land taken for the project and that title in the land was transferred from the Indians to the United States, the government contends that the Act did not diminish the reservation and that it was vested with jurisdiction to prosecute the defendants. The government has conceded, however, that, if the reservation has been diminished so that the situs of the offenses is no longer a part of the reservation, the district court did not have subject matter jurisdiction. Our analysis of the positions of the litigants leads us to conclude that the major source of controversy revolves around the omission of the two vitally important words “as diminished”" }, { "docid": "18272518", "title": "", "text": "all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same. See United States v. John, 437 U.S. 634, 647-49, 98 S.Ct. 2541, 2548-2549, 57 L.Ed.2d 489 (1978). . Language in the Pretrial Order notwithstanding, it has long been held that exclusive federal criminal jurisdiction over Indians in “Indian country” includes all persons found to be “Indian” under federal law, see United States v. Broncheau, 597 F.2d 1260, 1262-64 (9th Cir. 1979), cert. denied, 444 U.S. 859, 100 S.Ct. 123, 62 L.Ed.2d 80 (1980), notwithstanding specific tribal membership or lack thereof. See e. g., id., at 1263; United States v. Indian Boy X, 565 F.2d 585, 594 (9th Cir. 1977), cert. denied 439 U.S. 841, 99 S.Ct. 131, 58 L.Ed.2d 139; United States v. Ives, 504 F.2d 935, 953 (9th Cir. 1974) vacated on other grounds, 421 U.S. 944, 95 S.Ct. 1671, 44 L.Ed.2d 97 (1975); Ex parte Pero, 99 F.2d 28, 30 (7th Cir. 1938). The Ute Law and Order Code § 1-2-5 (1975), supra note 8, includes any federally recognized Indian within its subject-matter jurisdiction. . While strictly speaking, 18 U.S.C. § 1151 (1976) defines “Indian country” for the Federal Criminal Code, it is well-settled that its definition applies as well to questions of civil jurisdiction. DeCoteau v. District County Court, 420 U.S. 425, 427 n.2, 95 S.Ct. 1082, 1084, 43 L.Ed.2d 300 (1975), accord, McClanahan v. Arizona State Tax Comm., 411 U.S. 164, 177-78 n.17, 93 S.Ct. 1257, 1265, 36 L.Ed.2d 129 (1973); Kennerly v. District Court of Montana, 400 U.S. 423, 424 n.1, 91 S.Ct. 480, 481, 27 L.Ed.2d 507 (1971); Williams v. Lee, 358 U.S. 217, 220-22 nn. 5, 6, & 10, 79 S.Ct. 269," }, { "docid": "6152765", "title": "", "text": "PER CURIAM: The plaintiffs, enrolled members and voters of the Eastern Band of Cherokee Indians, filed this action, contending that the Tribal Council permitted irregularities in the September 1, 1977, tribal election in violation of the equal protection and due process rights guaranteed to the plaintiffs by the Indian Civil Rights Act of 1968 (ICRA), 25 U.S.C. § 1302(8). The complaint alleged jurisdiction under 28 U.S.C. § 1343(4), and prayed for both declaratory and injunctive relief. The district court concluded that it had jurisdiction, but granted the defendant’s motion to dismiss upon the ground that the complaint failed to state a claim upon which relief could be granted. The plaintiffs have appealed. We find it unnecessary to reach the merits of the appeal since we conclude that under the Supreme Court’s decision in Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978), the district court was without jurisdiction to entertain the action. In accepting jurisdiction the court below understandably relied upon our decision in Crowe v. Eastern Band of Cherokee Indians, Inc., 506 F.2d 1231 (4th Cir. 1974). In that case, drawing upon the rationale of Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968), we held that Section 1343(4) provided “a logical and specific basis of jurisdiction”, Id. at 1234, to assert rights guaranteed under the ICRA. In Martinez, however, the Court concluded that suits against a tribe under the ICRA are barred by its sovereign immunity and held that: “unless and until Congress makes clear its intention to permit the additional intrusion on tribal sovereignty that adjudication of such actions in a federal forum would represent, we are constrained to find that § 1302 does not impliedly authorize actions for declaratory or injunctive relief against either the tribe or its officers.” 436 U.S. at 72, 98 S.Ct. at 1684. Our decision in Crowe was, of course, overruled by the clear and unequivocal holding of the Court in Martinez, and requires that the jurisdictional ruling of the trial court be set aside. Accordingly, this case is" }, { "docid": "3258128", "title": "", "text": "to any Indian committing any offense in the Indian country “where, by treaty stipulation, the exclusive jurisdiction over such offenses is secured to the Indian tribes.” Appellant misreads §§ 1152 and 1153. A similar argument was made and rejected in Walks on Top v. United States, 372 F.2d 422 (9th Cir. 1967), cert. denied 389 U.S. 879, 88 S.Ct. 109, 19 L.Ed.2d 170 (1967); accord, Stone v. United States, 506 F.2d 561 (8th Cir. 1974). The second paragraph of § 1152 lists exceptions only from federal enclave laws and not from the general laws of the United States. The first paragraph declares, “[ejxcept as otherwise provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States . shall extend to the Indian country.” § 1153 is in the same vein. Any Indian who commits one of the ten (10) major crimes against another Indian or other person within the Indian country “shall be subject to the same laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States”, i. e., federal enclaves. We agree with the recent case of United States v. Three Winchester 30-80 Caliber Lever Action Carbines, etc., 504 F.2d 1288 (7th Cir. 1974), where the court held that 18 U.S.C. App. § 1202(a) did apply to Indians on Indian reservations. Section 1202(a) is included in the federal statutes of general applicability that make actions criminal wherever committed. Such laws are applicable to the Indian unless there exists some treaty right which exempts the Indian from the operation of the particular statutes in question. F.P.C. v. Tuscarora Indian Nation, 362 U.S. 99, 116, 80 S.Ct. 543, 4 L.Ed.2d 584 (1960). An examination of the Fort Bridger Treaty, July 3, 1868, 15 Stat. 673, discloses no language purporting to exempt Indians from the laws of general applicability throughout the United States regardless of situs of the act, and the defendant points to none. The government does not infringe upon the" }, { "docid": "8522754", "title": "", "text": "right to live in and among the Tonawanda nation (and the threat that this exclusion will be visited upon them). However, Tonawanda membership (and the concomitant right to dwell on the Tonawandas’ lands) is emphatically not a right “shared by the public generally.” As an Indian tribe, the Tonawanda Band retains “those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of [its] dependent status.” United States v. Wheeler, 435 U.S. 313, 323, 98 S.Ct. 1079, 1086, 55 L.Ed.2d 303 (1978). It is well settled that a tribe may physically exclude non-members entirely or condition their presence on its reservation. New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 333, 103 S.Ct. 2378, 2385-86, 76 L.Ed.2d 611 (1983). Petitioners point to no provision in any treaty or statute that evidences a con gressional intent to limit the Tonawanda Band’s power to exclude or expel. Given this power of the Indian nations to exclude non-members, the decisive question on this appeal becomes whether the Tonawanda Band had the power to strip petitioners of their tribal membership. The Supreme Court has not decided that question, but I think that it has pointed the way: “[a] tribe’s right to define its own membership for tribal purposes has long been recognized as central to its existence as an independent political community.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 n. 32, 98 S.Ct. 1670, 1684 n. 32, 56 L.Ed.2d 106 (1978). See also Wheeler, 435 U.S. at 322 n. 18, 98 S.Ct. at 1086 n. 18 (“[Ujnless limited by treaty or statute, a tribe has the power to determine tribe membership....”); Martinez v. Southern Ute Tribe, 249 F.2d 915, 920 (10th Cir.1957) (“[I]n absence of express legislation by Congress to the contrary, a tribe has the complete authority to determine all questions of its own membership, as a political entity.... It appears that for purposes of which the tribe has complete control, the tribe conclusively determines membership ....”), cert. denied, 356 U.S. 960, 78 S.Ct. 998, 2 L.Ed.2d 1067 (1958); Johnson v. Eastern Band Cherokee Nation," }, { "docid": "23104062", "title": "", "text": "as anticipated by the Indian Reorganization Act, § 16, 48 Stat. 987, 25 U. S. C. §476 (1976 ed.), the Mississippi Band of Choctaw Indians adopted a constitution and bylaws; these were duly approved by the appropriate federal authorities in May 1945. With this historical sketch as background, we turn to the jurisdictional issues presented by Smith John’s case. Ill In order to determine whether there is federal jurisdiction over the offense with which Smith John was charged (alleged in the federal indictment to have been committed “on and within the Choctaw Indian Reservation and on land within the Indian country under the jurisdiction of the United States of America”), we first look to the terms of the statute upon which the United States relies, that is, the Major Crimes Act, 18 U. S. C. § 1153. This Act, as codified at the time of the alleged offense, provided: “Any Indian who commits . . . assault with intent to kill . . . within the Indian country, shall be subject to the same laws and penalties as all other persons committing any [such offense], within the exclusive jurisdiction of the United States.” The definition of “Indian country” as used here and elsewhere in chapter 53 of Title 18 is provided in § 1151. Both the Mississippi Supreme Court and the Court of Appeals concluded that the situs of the alleged offense did not constitute “Indian country/’ and that therefore § 1153 did not afford a basis for the prosecution of Smith John in federal court. We do not agree. With certain exceptions not pertinent here, § 1151 includes within the term “Indian country” three categories of land. The first, with which we are here concerned, is “all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent.” This language first appeared in the Code in 1948 as a part of the general revision of Title 18. The Reviser’s Notes indicate that this definition was based on several decisions of this Court interpreting the term as it was" }, { "docid": "4023086", "title": "", "text": "for the purpose of providing Bureau of Indian Affairs (BIA) services to the Tribe. Also, we are informed by the United States that: “[T]he Department of the Interior is about to publish in the Federal Register a list of tribes eligible for BIA services, and the Passama-quoddy Tribe will be on that list. The significance of that list is that tribes so listed are not required to petition the Secretary of the Interior for official acknowledgement of their tribal existence. See 25 C.F.R. 54.6(b), as set out in 34 Fed.Reg. 39361-39364.” Whether or not these actions constitute adequate “federal recognition” under appellant’s approach to immunity is an issue we do not decide, given our holding that a tribe need not prove that it has been “federally recognized” in order to assert its immunity from suit. . Indeed we are cited to cases involving tribes which did not exhibit these criteria and yet were protected from suit by the doctrine of sovereign immunity. For example, the Florida Seminole and the Eastern or North Carolina Cherokees, both situated outside Indian country, are immune from suit. See Maryland Casualty Co. v. Citizens National Bank of West Hollywood, 361 F.2d 517 (5th Cir. 1966); Haile v. Saunooke, 246 F.2d 293 (4th Cir. 1957). The Santa Clara Pueblo, whose immunity was recognized in Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978) have been described as “sedentary rather than nomadic in their inclinations, and disposed to peace and industry”. United States v. Sandoval, 231 U.S. 28, 39, 34 S.Ct. 1, 358 L.Ed. 107 (1913). And, the doctrine has expressly been held applicable “even after dissolution of the tribal government”. United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 512, 60 S.Ct. 653, 84 L.Ed. 894 (1940). See Haile v. Saunooke, supra, 246 F.2d at 296." }, { "docid": "13974910", "title": "", "text": "the difficulty of preventing fishing along streams with considerable patent land, seemingly recognizing that the holders of that land might fish if they so chose. (PI. Ex. 22.) It appears on this record that no serious effort to completely forbid hunting and fishing by all non-Indians on reservation lands was made. . See note 10, supra. . The extent to which the Crow Tribe may regulate hunting and fishing by resident nonmembers is discussed in Part III, infra. A. Evidence that federal officials recognized to some degree this residential right to pursue game is found in exhibits noting problems with non-Indian hunters impinging on Indian lands but allowing “subsistence” hunting and possibly even recognizing the right of owners to fish on patent land within reservations. See note 11A, supra. . We express no opinion with respect to whether non-member Indians are subject to the criminal jurisdiction of the Crow tribal courts. . In United States v. Sanford, supra, 547 F.2d 1085, we held that Montana’s game laws applied to the activities of non-Indians on Indian reservations. We predicated this holding on our conviction that “the application of Montana game laws to the activities of non-Indians on Indian reservations does not interfere with tribal self-government on reservations.” 547 F.2d at 1089. In Sanford, however, we were not confronted with conflicting tribal and state regulations. When both state and tribal fish and game regulations further the goal of maximizing the utility of fish and game resources, and when the state’s regulations are more restrictive than the tribe’s, a non-Indian who violates the state regulation on the reservation is subject to state law. Such exercise of jurisdiction by the state does not infringe upon the tribe’s right to self-government. The decision in Eastern Band of Cherokee Indians v. North Carolina Wildlife Resources Commission, 588 F.2d 75 (4th Cir. 1978), is distinguishable. There, the circuit court held that North Carolina could not enforce its fishing licensing laws with respect to non-Indians fishing for trout in streams on the Band’s reservation because such enforcement would violate the standard established in Williams v. Lee, 358 U.S." }, { "docid": "21896579", "title": "", "text": "offense of simple assault, a misdemeanor which is not specifically listed in 18 U.S.C. § 1153. United States v. John, 437 U.S. 634, 636, 98 S.Ct. 2541, 2543 n. 3, 57 L.Ed.2d 489 (1978). We are of the opinion that the District Court had jurisdiction to enter the judgment of conviction for the offense of simple assault, and we therefore affirm. This conclusion is, in most respects, identical to that reached by the only other circuit which has considered this precise problem. See Felicia v. United States, 8 Cir. 1974, 495 F.2d 353, cert. denied, 419 U.S. 849, 95 S.Ct. 88, 42 L.Ed.2d 79 (1974). At the time of the alleged offense, 18 U.S.C. § 1153 provided that “[a]ny Indian who commits against the person . of another Indian or other person . assault with intent to kill . . . within the Indian country, shall be subject to the same laws and penalties as all other persons committing [such offense], within the exclusive jurisdiction of the United States.” Because Smith John is an Indian and the victim, Jenkins, was not, “the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States” are applicable. 18 U.S.C. § 1152. As the Supreme Court noted when this case was before it, 18 U.S.C. § 113 is “the statute [which specifies] punishment for assaults committed within the special territorial jurisdiction of the United States, including those for which federal prosecutions are authorized by § 1153 . . ..” 437 U.S. at 636, 98 S.Ct. at 2542 n. 2. In 1975, § 113 prescribed punishments for five distinct categories of assault: (1) assault with intent to commit murder or rape; (2) assault with intent to commit any felony, except murder or rape; (3) assault with a dangerous weapon, with intent to do bodily harm, and without just cause or excuse; (4) assault by striking, beating, or wounding; and (5) simple assault. Smith John bases his argument upon his reading of 18 U.S.C. § 1153 and Keeble, supra. Specifically," }, { "docid": "12763736", "title": "", "text": "unquestionably vested prior to 1934. Tribal ordinances enacted to implement traditionally held, and congressionally approved, powers, may themselves serve to preempt the State. The Supreme Court saw another similarly enacted tribal ordinance as the implementation of “an overriding federal policy which is clearly adequate to defeat state jurisdiction.” Fisher v. District Court, 424 U.S. 382, 390, 96 S.Ct. 943, 948, 47 L.Ed.2d 106 (1976). Any constitutional limitations on congressional authority to delegate its legislative powers are “less stringent . . where [as here] the entity exercising the delegated authority itself possesses independent authority over the subject matter.” United States v. Mazurie, 419 U.S. 544, 556-57, 95 S.Ct. 710, 717, 42 L.Ed.2d 706 (1975). The tribal scheme also negates any argument that the Tribe has not manifested an intent to preempt state jurisdiction. Cf. Confederated Tribes of Colville Indian Reservation v. Washington, 591 F.2d 89 (9th Cir. 1979). The Fourth Circuit has held that extensive federal participation in reservation wildlife development is itself an element indicating federal preemption. Eastern Band of Cherokee Indians v. North Carolina Wildlife Resources Commission, 588 F.2d 75, 78 (4th Cir. 1978). In Eastern Band, as here, the federal government and the Tribe had developed the reservation fishing program with no state assistance. Where the State plays no role in stocking reservation waters, it “has no perceivable interest in reservation fishing.” Id See White Mountain Apache Tribe v. Bracker, - U.S.--, -, 100 S.Ct. 2578, 2587, 65 L.Ed.2d 665 (1980). See also Central Machinery Co. v. Arizona State Tax Commission, - U.S. -, 100 S.Ct. 2592, 65 L.Ed.2d 684 (1980). Finally, we infer federal preemption from the statutory structure of Public Law 280, 67 Stat. 590 (1953), and its later amendments. Under that statute, New Mexico had the option until 1968 of unilaterally asserting civil and criminal jurisdiction over the Mescalero Apache reservation. It did not do so. See McClanahan v. Arizona State Tax Commission, 411 U.S. at 177-79, 93 S.Ct. at 1265-66. Even had the State assumed jurisdiction, the statute in its present form specifically protects the tribes from the deprivation of “any right, privilege, or" }, { "docid": "23185436", "title": "", "text": "in Indian country by Indians against Indians, while recognizing that Indian tribes generally do not have jurisdiction over non-Indians. See Oliphant, 435 U.S. at 195-206 & n. 8, 98 S.Ct. 1011; see also 25 U.S.C. § 1302(2)(recognizing “the inherent. power of Indian tribes ... to exercise criminal jurisdiction over all Indians”). The Supreme Court has interpreted the exception as manifesting a broad congressional respect for tribal sovereignty in matters affecting only Indians. See United States v. Quiver, 241 U.S. 602, 36 S.Ct. 699, 60 L.Ed. 1196 (1916) (broadly interpreting the intra-Indian offense exception to extend to adultery involving an Indian participant). Following the Supreme Court’s decision in Ex Parte Crow Dog, 109 U.S. 556, 3 S.Ct. 396, 27 L.Ed. 1030 (1883), which held that neither federal nor tribal courts had jurisdiction to try an Indian for the murder of another Indian on a reservation, Congress revisited this policy. Congressional displeasure with the Crow Dog decision led to the passage of a second statute, 18 U.S.C. § 1153, designed to establish as federal crimes, fourteen named offenses committed by Indians in Indian country. See United States v. Broncheau, 597 F.2d 1260, 1265 (9th Cir.1979), cert. denied, 444 U.S. 859, 100 S.Ct. 123, 62 L.Ed.2d 80 (1979). As relevant for our purposes, § 1153 provides: Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely ... an assault against an individual who has not attained the age of 16 years ... shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States. 18 U.S.C. § 1153(a) (2004). Enacted in 1885, the Indian Major Crimes Act (“IMCA”) guaranteed that Indians committing major crimes against other Indians would be treated with the same rigor as non-Indian offenders. See Oliphant, 435 U.S. at 203 & n. 4, 98 S.Ct. 1011. The IMCA, the Court has recognized, is a “ ‘carefully limited intrusion of federal power into the otherwise exclusive jurisdiction of the Indian tribes to punish Indians for" }, { "docid": "21896578", "title": "", "text": "COLEMAN, Circuit Judge. In October 1975, Smith John, a Choctaw Indian, was indicted by a federal grand jury for assault with intent to kill Artis Jenkins, a non-Indian, in violation of 18 U.S.C. §§ 1153 and 113(a). At the conclusion of the trial, Smith John requested and received instructions on the lesser included offense of simple assault, as he was entitled under Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973). The jury convicted him of simple assault, and the Court sentenced him to 90 days’ imprisonment and a $300 fine. On appeal, we reversed, holding that the District Court was without jurisdiction because the land on which the offense took place was not “Indian country” within the meaning of 18 U.S.C. § 1153. United States v. John, 5 Cir. 1977, 560 F.2d 1202. The Supreme Court reversed that holding and remanded for further proceedings, noting that our opinion had not addressed the separate issue of whether the District Court had jurisdiction to enter a judgment of conviction for the offense of simple assault, a misdemeanor which is not specifically listed in 18 U.S.C. § 1153. United States v. John, 437 U.S. 634, 636, 98 S.Ct. 2541, 2543 n. 3, 57 L.Ed.2d 489 (1978). We are of the opinion that the District Court had jurisdiction to enter the judgment of conviction for the offense of simple assault, and we therefore affirm. This conclusion is, in most respects, identical to that reached by the only other circuit which has considered this precise problem. See Felicia v. United States, 8 Cir. 1974, 495 F.2d 353, cert. denied, 419 U.S. 849, 95 S.Ct. 88, 42 L.Ed.2d 79 (1974). At the time of the alleged offense, 18 U.S.C. § 1153 provided that “[a]ny Indian who commits against the person . of another Indian or other person . assault with intent to kill . . . within the Indian country, shall be subject to the same laws and penalties as all other persons committing [such offense], within the exclusive jurisdiction of the United States.” Because Smith John is an Indian" }, { "docid": "16743967", "title": "", "text": "300-04 (1982). In order to prosecute under 18 U.S.C. § 1152, the Government must prove, as a jurisdictional requisite, that the crime was in violation of a Federal enclave law, and that the crime occurred between an Indian and a non-Indian within Indian country. See United States v. Wheeler, 435 U.S. 313, 324-25, 98 S.Ct. 1079, 1086-87, 55 L.Ed.2d 303 (1978); United States v. Blue, 722 F.2d 383, 384-85 (8th Cir.1983); United States v. John, 587 F.2d 683, 686-87 (5th Cir.) (on remand from the United States Supreme Court), cert. denied, 441 U.S. 925, 99 S.Ct. 2036, 60 L.Ed.2d 399 (1979); F. Cohen, Handbook of Federal Indian Law, 287-300 (1982). The appellants contend that the evidence introduced at trial was insufficient to prove the jurisdictional requisite of their Indian status for purposes of 18 U.S.C. § 1153, and further, that the district court erred by failing to instruct the jury on the jurisdictional requisite of Peterson’s non-Indian status for purposes of 18 U.S.C. § 1152. In addition, the appellants claim that the evidence clearly showed that the conspiracy to commit murder and the kidnaping originated in non-Indian country, and thus should have been prosecuted in the Wisconsin state court system. We initially address the appellants’ jurisdictional claim under 18 U.S.C. § 1153, which provides: “Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder ... kidnaping ... within the Indian country, shall be subject to the same laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.” According to this language, in order to prosecute the appellants under 18 U.S.C. § 1153, the Government had to establish that the appellants were Indians who committed murder and kidnaping against an Indian, or any other person, within Indian country. In the instant case, the indictment charged that appellants Fish and Torres were “Indians” who committed first degree murder in violation of 18 U.S.C. § 1111, and kidnaping in violation of 18 U.S.C. § 1201, against the person of Thomas" }, { "docid": "12763757", "title": "", "text": "construed as a limitation on the inherent residual sovereign powers of the Mescalero Apache Tribe.” Mescalero Apache Tribe Revised Const. art. 27, § 1. . In Eastern Band, Chief Judge Haynsworth emphasized that the fishing program was a “purely commercial undertaking” of the Cherokees. 588 F.2d at 79. We believe that the tribal interests are, if anything, enhanced when the purposes of the wildlife regulation are much broader. . Our analysis does not attach independent preemptive significance to 18 U.S.C. § 1165. Cf. Central Machinery Co. v. Arizona State Tax Commission, - U.S. -, 100 S.Ct. 2592, 65 L.Ed.2d 684 (1980). The import of that statute is addressed in Part V. . We recognize that the preemption and self-government analyses overlap, and that the Supreme Court appears to be gradually collapsing the tests into one. See Washington v. Confederated Tribes of Colville Indian Reservation, - U.S. -, ---, 100 S.Ct. 2069, 2082-83, 65 L.Ed.2d 10 (1980). Nonetheless, the two tests continue to provide different analytical perspectives. See White Mountain Apache Tribe v. Bracker, - U.S. -, 100 S.Ct. 2578, 2583, 65 L.Ed.2d 665 (1980). . Section 1165, entitled “Hunting, trapping, or fishing on Indian land,” reads: Whoever, without lawful authority or permission, willfully and knowingly goes upon any land that belongs to any Indian or Indian tribe, band, or group and either are held by the United States in trust or are subject to a restriction against alienation imposed by the United States, or upon any lands of the United States that are reserved for Indian use, for the purpose of hunting, trapping, or fishing thereon, or for the removal of game, peltries, or fish therefrom, shall be fined not more than $200 or imprisoned not more than ninety days, or both, and all game, fish, and peltries in his possession shall be forfeited. . Recent Supreme Court reiterations of the continuing importance of tribal sovereignty are legion. See, e. g., Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55-56, 98 S.Ct. 1670, 1675-76, 56 L.Ed.2d 106 (1978); United States v. Wheeler, 435 U.S. 313, 322-28, 98 S.Ct. 1079, 1085-89," }, { "docid": "2761487", "title": "", "text": "and TLOA Enhanced Sentencing, online at http://www.tribal-institute.org/download/ VAWA/VAWAImplementationChart.pdf. States are unable or unwilling to fill the enforcement gap. Most States lack jurisdiction over crimes committed in Indian country against Indian victims. See United States v. John, 437 U.S. 634, 651, 98 S.Ct. 2541, 57 L.Ed.2d 489 (1978). In 1953, Congress increased the potential for state action by giving six States “jurisdiction over specified areas of Indian country within the States and providfing] for the [voluntary] assumption of jurisdiction by other States.” California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987) (footnote omitted). See Act of Aug. 15, 1953, Pub. L. 280, 67 Stat. 588 (codified, as amended, at 18 U.S.C. § 1162 and 25 U.S.C. §§ 1321-1328,1360). States so empowered may apply their own criminal laws to “offenses committed by or against Indians within all Indian country within the State.” Cabazon Band of Mission Indians, 480 U.S., at 207, 107 S.Ct. 1083; see 18 U.S.C. § 1162(a). Even when capable of exercising jurisdiction, however, States have not devoted their limited criminal justice resources to crimes committed in Indian country. Jimenez & Song, Concurrent Tribal and State Jurisdiction Under Public Law 280, 47 Am. U. L. Rev, 1627, 1636-1637 (1998); Tribal Law and Policy Inst., S. Deer, C. Goldberg, H. Valdez Singleton, & M. White Eagle, Final Report: Focus Group on Public Law 280 and the Sexual Assault of Native Women 7-8 (2007), online at http://www.tribal-institute. org/download/Final% 20280% 20FG% 20Report.pdf. That leaves the Federal Government. Although federal law generally governs in Indian country, Congress has long excluded from federal-court jurisdiction crimes committed by an Indian against another Indian. 18 U.S.C. § 1152; see Ex parte Crow Dog, 109 U.S. 556, 572, 3 S.Ct. 396, 27 L.Ed. 1030 (1883) (requiring “a clear expression of the intention of Congress” to confer federal jurisdiction over crimes committed by an Indian against another Indian). In the Major Crimes Act, Congress authorized federal jurisdiction over enumerated grave criminal offenses when both perpetrator and victim are Indians, including murder, manslaughter, and felony assault. § 1153. At the time" }, { "docid": "8522755", "title": "", "text": "to strip petitioners of their tribal membership. The Supreme Court has not decided that question, but I think that it has pointed the way: “[a] tribe’s right to define its own membership for tribal purposes has long been recognized as central to its existence as an independent political community.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 n. 32, 98 S.Ct. 1670, 1684 n. 32, 56 L.Ed.2d 106 (1978). See also Wheeler, 435 U.S. at 322 n. 18, 98 S.Ct. at 1086 n. 18 (“[Ujnless limited by treaty or statute, a tribe has the power to determine tribe membership....”); Martinez v. Southern Ute Tribe, 249 F.2d 915, 920 (10th Cir.1957) (“[I]n absence of express legislation by Congress to the contrary, a tribe has the complete authority to determine all questions of its own membership, as a political entity.... It appears that for purposes of which the tribe has complete control, the tribe conclusively determines membership ....”), cert. denied, 356 U.S. 960, 78 S.Ct. 998, 2 L.Ed.2d 1067 (1958); Johnson v. Eastern Band Cherokee Nation, 718 F.Supp. 6 (N.D.N.Y.1989) (observing that “[tjhe Supreme Court has held that controversies surrounding membership in an Indian Nation are reserved to the tribe’s discretion, and therefore do not present a question of federal law,” and dismissing suit to enjoin plaintiffs exclusion from an Indian tribe for lack of subject matter jurisdiction). The order of banishment in this ease is harsh and disturbing, but a tribe’s prerogative to define itself as a “culturally and politically distinct entity,” Santa Clara Pueblo, 436 U.S. at 72, 98 S.Ct. at 1684, is a “delicate” matter in which federal courts should not lightly intrude, id. at 72 n. 32, 98 S.Ct. at 1684 n. 32, notwithstanding harsh consequences. There is every reason to think that this tribal prerogative extends to the expulsion of existing tribal members. In Roff v. Burney, 168 U.S. 218, 18 S.Ct. 60, 42 L.Ed. 442 (1897), a case cited in Santa Clara Pueblo as well as in Wheeler, a United States citizen whose wife had become a citizen of the Chickasaw Nation through Chickasaw legislation" }, { "docid": "5563305", "title": "", "text": "Tri-State Equipment, Inc., 792 F.2d 967, 970 (10th Cir.1986). Land held in trust for Indian use, like the Greasy Ballpark, is “Indian country” as that term is defined in 18 U.S.C. § 1151. United States v. John, 437 U.S. 634, 648-49, 98 S.Ct. 2541, 2548-49, 57 L.Ed.2d 489 (1978); Cheyenne-Arapaho Tribes v. Oklahoma, 618 F.2d 665, 668 (10th Cir.1980). Indian country is subject to exclusive federal or tribal criminal jurisdiction “[ejxcept as otherwise expressly provided by law.” 18 U.S.C. § 1152. Congress has granted general criminal jurisdiction to some states over Indian country within their borders, see, e.g., 18 U.S.C. §§ 1162 (various states), 3243 (Kansas), but no such provision has been made for Oklahoma. Congress has also provided, now in 25 U.S.C. § 1321, “a statutory method by which a state, with the consent of the tribe, can assume jurisdiction over Indian country.” United States v. Burnett, 777 F.2d 593, 597 (10th Cir.1985). Oklahoma, however, has not acted to assume jurisdiction by this method. See Citizens Band Potawatomi Indian Tribe v. Oklahoma Tax Commission, 888 F.2d 1303, 1307 (10th Cir.1989); Burnett, 777 F.2d at 597; State v. Klindt, 782 P.2d 401, 403 (Okla.Crim.App.1989). If there has been no express delegation of jurisdiction to the state, a fortiori, there has been no grant of local jurisdiction. Because the state of Oklahoma has neither received by express grant nor acted pursuant to congressional authorization to assume criminal jurisdiction over this Indian country, Adair County, its sheriff, and its subordinate police officers had no jurisdiction to arrest Ross at the Greasy Ballpark. See United States v. Baker, 894 F.2d 1144, 1146 (10th Cir.1990) (county district court exceeded its authority in issuing search warrant for property within Indian country). Defendants argue that, despite the plain language of 18 U.S.C. § 1152, a state may assert criminal jurisdiction over Indians in Indian country whenever such action would not undermine tribal or federal interests. On numerous occasions the Supreme Court has stated that “even on reservations, state laws may be applied unless such application would interfere with reservation self-government or would impair a right granted" }, { "docid": "2761486", "title": "", "text": "the period 1979 through 1992, homicide was the third leading cause of death of Indian females aged 15 to 34, and 75 percent were killed by family members or acquaintances.”). The “complex patchwork of federal, state, and tribal law” governing Indian country, Duro v. Reina, 495 U.S. 676, 680, n. 1, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990), has made it difficult to stem the tide of domestic violence experienced by Native American women. Although tribal courts may enforce the tribe’s criminal laws against Indian defendants, Congress has curbed tribal courts’ sentencing authority. At the time of § 117(a)’s passage, ICRA limited sentences in tribal court to a maximum of one year’s imprisonment. 25 U.S.C. § 1302(a)(7) (2006 ed.). Congress has since expanded tribal courts’ sentencing authority, allowing them to impose up to three years’ imprisonment, contingent on adoption of additional procedural safeguards. 124 Stat. 2279-2280 (codified at 25 U.S.C. § 1302(a)(7)(C), (c)). To date, however, few tribes have employed this enhanced sentencing authority. See Tribal Law and Policy Inst., Implementation Chart: VAWA Enhanced Jurisdiction and TLOA Enhanced Sentencing, online at http://www.tribal-institute.org/download/ VAWA/VAWAImplementationChart.pdf. States are unable or unwilling to fill the enforcement gap. Most States lack jurisdiction over crimes committed in Indian country against Indian victims. See United States v. John, 437 U.S. 634, 651, 98 S.Ct. 2541, 57 L.Ed.2d 489 (1978). In 1953, Congress increased the potential for state action by giving six States “jurisdiction over specified areas of Indian country within the States and providfing] for the [voluntary] assumption of jurisdiction by other States.” California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987) (footnote omitted). See Act of Aug. 15, 1953, Pub. L. 280, 67 Stat. 588 (codified, as amended, at 18 U.S.C. § 1162 and 25 U.S.C. §§ 1321-1328,1360). States so empowered may apply their own criminal laws to “offenses committed by or against Indians within all Indian country within the State.” Cabazon Band of Mission Indians, 480 U.S., at 207, 107 S.Ct. 1083; see 18 U.S.C. § 1162(a). Even when capable of exercising jurisdiction, however, States have" }, { "docid": "3848128", "title": "", "text": "PER CURIAM: Roy Wilbur Hornbuckle, an Indian, was convicted of assaulting another Indian with a dangerous weapon on the Cherokee Indian Reservation, known as the Qualla Boundary in Western North Carolina, in violation of 18 U.S.C. §§ 113 (c) and 1153. His principal contention is that North Carolina has exclusive jurisdiction over crimes committed on the reservation. Judge Parker related the history of the Qualla Boundary and of United States guardianship over the Eastern Band of the Cherokee Indians in United States v. Wright, 53 F.2d 300 (4th Cir. 1931), cert. denied, 285 U.S. 539, 52 S.Ct. 312, 76 L.Ed. 932 (1932). For the reasons set forth in that opinion, the Eastern Band of the Cherokees has been recognized as an Indian tribe, and the land they occupy is subject to federal statutes pertaining to Indian reservations. E. g., Haile v. Saunooke, 246 F.2d 293 (4th Cir.), cert. denied, 355 U.S. 893 78 S.Ct. 268, 2 L.Ed.2d 191 (1957); United States v. Parton, 132 F.2d 886 (4th Cir. 1943). Contrary to Hornbuckle’s contention, the United States and North Carolina exercise concurrent criminal jurisdiction over the reservation. State v. McAlhaney, 220 N.C. 387, 17 S.E.2d 352 (1941). We find no merit in Hornbuckle’s other assignments of error concerning the sufficiency of the evidence and the court’s charge to the jury. Affirmed." } ]

[ { "docid": "10015932", "title": "", "text": "the binding function of the polymer in the claimed invention, there remains nothing in the Coates toner to perform the function of the wax in the claimed invention. Spectra’s arguments and authorities dealing with situations in which an element is substituted in the accused product for an element set forth in a claim, and situations in which one element in the accused product performs the functions of two elements set forth in a claim, are thus inapt. The clear and uncontroverted statements made in the specification of the ’300 patent, coupled with Spectra’s admission of the function of the wax in the claimed invention, thus preclude Spectra from successfully arguing now that toners without polymer, and without a wax-reduced affinity between polymer and dyestuff, are an equivalent of the invention claimed in the ’300 patent. See Brenner, 773 F.2d at 307, 227 USPQ at 160-61 (no genuine issue about equivalents because specification “taught away”, and because of certain prosecution history). The question under the doctrine is whether the Coates toner “performs substantially the same function in substantially the same way to obtain the same result” as the claimed toner. Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 339 U.S. 605, 608, 70 S.Ct. 854, 856, 94 L.Ed. 1097, 85 USPQ 328, 330 (1950). The function (dyeing) and the result (dyed material) are broadly the same. The ways in which that function is performed and that result is obtained, however, are entirely distinct. In the claimed invention a polymer binds a dyestuff and wax facilitates the polymer’s action. Assuming, arguendo, the correctness of Spectra’s assertion that the wax in the Coates toner binds the dyestuff, there is in the Coates toner no polymer binding action and no facilitating of that action by the wax. Thus the individual function of the wax in the claimed toner, i.e., solving the “over-affinity” problem of the polymer, is entirely absent and the way in which the dyeing function is performed by the Coates toner is not substantially the same as that in which it is performed by the claimed toner. Under those circumstances," } ]

[ { "docid": "5163474", "title": "", "text": "to infringe if there is ‘equivalence’ between the elements of the accused product or process and the claimed elements of the patented invention.” Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 21, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). The doctrine of equivalents must be applied to the “individual elements of the claim, not to the invention as a whole.” Id. at 29, 117 S.Ct. 1040. “An element of an accúsed [product] is equivalent to an element of the patented invention if the differences between them are insubstantial.” Martek Biosciences Corp. v. Nutrinova, Inc., 520 F.Supp.2d 537, 547 (D.Del.2007) (quoting Warner-Jenkinson, 520 U.S. at 39, 117 S.Ct. 1040). Alternatively, the accused product infringes under the doctrine of equivalents “if the element in the accused device performs substantially the same function in substantially the same way to obtain the same result' as the claim limitar tion.” Id. at 547-48. Regardless of whether the insubstantial differences or the function test is used, the patentee must provide “particularized testimony and linking argument” for each limitation invoking the doctrine of equivalents. See Texas Instruments v. Cypress Semiconductor Corp., 90 F.3d 1558, 1567 (Fed.Cir.1996). However, the doctrine of prosecution history estoppel may bar a patentee from asserting as an equivalent subject matter that was surrendered during prosecution of the patent or that would vitiate a claim term. Festo, 535 U.S. at 729, 122 S.Ct. 1831; Wamer-Jenkinson, 520 U.S. at 30-31, 117 S.Ct. 1040. The prosecution history estoppel doctrine serves a public notice function. Specifically, if a patentee clearly states during prosecution that certain subject matter is not claimed, the public and the patentee’s competitors, may rely on that representation in making and using unclaimed subject matter without giving rise to an infringement action. See Festo, 535 U.S. at 727, 122 S.Ct. 1831. To this end, if the prosecution history shows that the patentee made a narrowing amendment for reasons related to patentability or there is no explanation regarding the amendment, then a presumption is raised that bars equivalents for the added limitations. Id. at 739-40, 122 S.Ct. 1831. An amendment is made for" }, { "docid": "6371505", "title": "", "text": "narrowing amendments [adding the phrases ‘by evaporation’ and ‘and evapo-ratively cooling said person’ to claims 1 and 9 of the '977 patent] operated to ex- elude the Zafiroglu '297 patent and [Tech-niche’s] like product, [and] a presumption of prosecution history estoppel by amendment arises which [AquaTex] has not overcome.” AquaTex, 2006 WL 1006631, at *8. However, the district court’s approach is foreclosed by our prior opinion, which held that “[t]he subject matter surrendered by the narrowing amendment bears no relation to the composition of the fiberfill batting material.” AquaTex, 419 F.3d at 1383. In fact the amendment was directed to a completely different claim limitation— the requirement that the overall method of cooling of the garment be by evaporation. See id. at 1383 (“The arguments made during prosecution, and the corresponding addition of the claim limitation ‘by evaporation,’ indicate that AquaTex was distinguishing the overall method of cooling of its claimed invention from that of the [Za-firoglu] patent.”). Thus, AquaTex surrendered no claim to the characteristics of the fiberfill during prosecution and was not barred from asserting equivalents as to the “fiberfill batting material” limitation. B A finding of infringement under the doctrine of equivalents requires a showing that the difference between the claimed invention and the accused product or method was insubstantial or that the accused product or method performs the substantially same function in substantially the same way with substantially the same result as each claim limitation of the patented product or method. AquaTex, 419 F.3d at 1382; see also Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 339 U.S. 605, 608, 70 S.Ct. 854, 94 L.Ed. 1097 (1950) (“[A] patentee may invoke this doctrine [of equivalents] to proceed against the producer of a device ‘if it performs substantially the same function in substantially the same way to obtain the same result.’ ” (quoting Sanitary Refrigerator Co. v. Winters, 280 U.S. 30, 42, 50 S.Ct. 9, 74 L.Ed. 147 (1929))). We have held that the function, way, result inquiry focuses on “an examination of the claim and the explanation of it found in the written description" }, { "docid": "16667276", "title": "", "text": "no error in the court’s construction of the claims of the ’447 patent. The language of independent claim 1 requires that one end of the first jaw member be hingedly secured to one end of the second jaw member. The specification shows that the hook means of claim 1 is the means for supporting the user from an elevated horizontal bar. Where the facts underlying the issue of infringement are undisputed, the function of applying claims to the accused device is the province of the district court. Molinaro v. Fannon/Courier Corp., 745 F.2d at 654, 223 USPQ at 708. The only evidence Martin points to as raising a genuine issue are certain interrogatory answers and an affidavit from an expert witness which attempt to show how the claims read on the accused portion of the Backswing. The interrogatory answers and the affidavit merely associate particular parts of the Backswing with the elements of claim 1 of the patent. No underlying facts are raised or disputed in these documents. Thus, this evidence does not create an issue of material fact. Id. Martin next argues that the district court should not have granted summary judgment of non-infringement because infringement under the doctrine of equivalents raises material issues of fact. This argument has merit. Designed to protect a patentee from an infringer who appropriates the invention but avoids the literal language of the claims, the doctrine of equivalents allows a finding of infringement when the accused device and the claimed invention perform substantially the same function in substantially the same way to yield substantially the same result. Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 608, 70 S.Ct. 854, 856, 94 L.Ed. 1097 (1950); Perkin-Elmer Corp. v. Computervision Corp., 732 F.2d 888, 900, 221 USPQ 669, 679 (Fed.Cir.), cert. denied, — U.S. -, 105 S.Ct. 187, 83 L.Ed.2d 120 (1984). In its opinion, the district court correctly articulated the tripartite test of “function, way, and result,” but then erroneously compared the operation of a preferred embodiment disclosed in the ’447 patent with the operation of the accused Backswing" }, { "docid": "20550988", "title": "", "text": "the asserted patent claims against the ANDA product that is likely to be sold following FDA approval. Warner-Lambert Co. v. Apotex Corp., 316 F.3d 1348, 1365-66 (Fed.Cir.2003) (citing Glaxo, Inc. v. Novopharm, Ltd., 110 F.3d 1562, 1567-68 (Fed.Cir.1997)). The burden of proving infringement by a preponderance of the evidence remains on the patentee. Id. Evalu ating the grant of summary judgment of noninfringement requires two steps: (1) claim construction, where contested, and (2) comparison of the properly construed claims to the accused product. Abbott Labs. v. Sandoz, Inc., 566 F.3d 1282, 1288 (Fed.Cir.2009). The second step of the analysis is a question of fact. Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353 (Fed.Cir.1998). As such, it is amenable to summary judgment where no reasonable fact-finder could find that the accused product contains every claim limitation or its equivalent. Id.; see Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 29, 39 n. 8, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). Even without literal infringement, a patentee may establish infringement under the doctrine of equivalents if an element of the accused product “performs substantially the same function in substantially the same way to obtain the same result as the claim limitation.” Pozen Inc. v. Par Pharm., Inc., 696 F.3d 1151, 1167 (Fed.Cir.2012) (citation omitted). Whether prosecution history estoppel applies, and thus whether the doctrine of equivalents is available for a particular claim limitation, is a question of law reviewed de novo. Intervet Inc. v. Merial Ltd., 617 F.3d 1282, 1290-91 (Fed.Cir.2010). That situation arises when an applicant during prosecution either makes an argument evincing a “clear and unmistakable surrender” of subject matter, Elkay Mfg. Co. v. Ebco Mfg. Co., 192 F.3d 973, 979 (Fed.Cir.1999), or narrows a claim “to avoid the prior art, or otherwise to address a specific concern ... that arguably would have rendered the claimed subject matter unpatentable,” Warner-Jenkinson, 520 U.S. at 30-31, 117 S.Ct. 1040. The applicant is then estopped from later invoking the doctrine of equivalents to recapture the surrendered subject matter. Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S." }, { "docid": "22262670", "title": "", "text": "not literally infringe the Pall patent is affirmed. B. Infringement by Equivalents When literal infringement is not established, infringement may be proved under the doctrine of equivalents when there is not a substantial difference between the claimed invention and the accused product. Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 339 U.S. 605, 70 S.Ct. 854, 94 L.Ed. 1097, 85 USPQ 328 (1950); Hilton Davis Chemical Co. v. Warner-Jenkinson Co., 62 F.3d 1512, 35 USPQ2d 1641 (Fed.Cir.1995) (en banc). The determination of whether the accused product is substantially the same as the claimed invention is a question of fact, and the district court’s determination thereof is reviewed for clear error. Id. at 1521, 35 USPQ2d at 1647. The district court found that MSI’s nylon 46 membranes had substantially the same chemical and physical structure, performed the same function in the same way, and achieved the same result, as Pall’s claimed membranes. The court thus found that claim 116 was infringed under the doctrine of equivalents. MSI does not argue on this appeal that the nylon 46 and nylon 66 membranes are not equivalent. Instead, MSI argues that Pall is estopped to establish infringement based on equivalency because during patent prosecution Pall voluntarily gave up claim scope that would have literally included nylon 46. MSI asserts that Pall is estopped from obtaining that scope under the doctrine of equivalents, even if the products are in fact equivalent. Prosecution history estoppel limits infringement by otherwise equivalent structures, by barring recapture by the patentee of scope that was surrendered in order to obtain allowance of the claims. Mannesmann Demag Corp. v. Engineered Metal Products Co., 793 F.2d 1279, 1285, 230 USPQ 45, 48 (Fed.Cir.1986); Thomas and Betts Corp. v. Litton Sys., Inc., 720 F.2d 1572, 1579, 220 USPQ 1, 6 (Fed.Cir.1983). Thus, by actions taken during patent prosecution the patentee can be estopped from reaching subject matter that otherwise meets the criteria of equivalency. Pall states that there is no estoppel with respect to nylon 46, because no claim scope covering nylon 46 was yielded due to prior art or based" }, { "docid": "22784155", "title": "", "text": "that term in every claim of the patent absent a clear indication to the contrary. II. Infringement Under The Doctrine of Equivalents An accused product that does not literally infringe a claim may infringe under the doctrine of equivalents if “it performs substantially the same function in substantially the same way to obtain the same result.” Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 339 U.S. 605, 608, 70 S.Ct. 854, 856, 94 L.Ed. 1097, 85 USPQ 328, 330 (1950). Only if an accused product contains specific structure which meets all limitations of an asserted claim directed to structure, at least equivalently, can that product infringe under the doctrine of equivalents. Pennwalt Corp. v. Durand-Wayland, Inc., 833 F.2d 931, 935, 4 USPQ2d 1737, 1739 (Fed.Cir.1987) (in banc), cert. denied, 485 U.S. 961, 108 S.Ct. 1226, 99 L.Ed.2d 426 (1988). The doctrine of equivalents, however, is not a tool for expanding the protection of a patent after examination has been completed. Hormone Research Foundation, Inc. v. Genentech, Inc., 904 F.2d 1558, 1564, 15 USPQ2d 1039, 1044 (Fed.Cir.1990). Thus, prosecution history estoppel limits the range of equivalents available to a patentee by preventing recapture of subject matter surrendered during prosecution of the patent. Townsend Eng’g Co. v. HiTec Co., 829 F.2d 1086, 1090, 4 USPQ2d 1136, 1139 (Fed.Cir.1987). The application of prosecution history estoppel raises a question of law which we review de novo. LaBounty Mfg., Inc. v. United States Int’l Trade Comm’n, 867 F.2d 1572, 1576, 9 USPQ2d 1995, 1998 (Fed.Cir.1989). The issue presented by this appeal is whether, because of the manner of its manufacture, Cardinal’s titanium oxide layer is excluded, as a matter of law, from the range of equivalents that can be accorded the limitation “sputter-deposited dielectric.” The district court applied prosecution history es-toppel in holding that the range of equivalents could not extend to Cardinal’s dielectric layer because, “[t]he Examiner specifically rejected any process where the ‘metal oxide is [s]putter-deposited as a metal and later oxidized.’ The Cardinal process is such a process.” Slip op. at 20. Having concluded that the range of equivalents accorded" }, { "docid": "6371506", "title": "", "text": "from asserting equivalents as to the “fiberfill batting material” limitation. B A finding of infringement under the doctrine of equivalents requires a showing that the difference between the claimed invention and the accused product or method was insubstantial or that the accused product or method performs the substantially same function in substantially the same way with substantially the same result as each claim limitation of the patented product or method. AquaTex, 419 F.3d at 1382; see also Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 339 U.S. 605, 608, 70 S.Ct. 854, 94 L.Ed. 1097 (1950) (“[A] patentee may invoke this doctrine [of equivalents] to proceed against the producer of a device ‘if it performs substantially the same function in substantially the same way to obtain the same result.’ ” (quoting Sanitary Refrigerator Co. v. Winters, 280 U.S. 30, 42, 50 S.Ct. 9, 74 L.Ed. 147 (1929))). We have held that the function, way, result inquiry focuses on “an examination of the claim and the explanation of it found in the written description of the patent.” Vehicular Techs. Corp. v. Titan Wheel Int'l, Inc., 141 F.3d 1084, 1090 (Fed.Cir.1998); see also Warner-Jenkinson, 520 U.S. at 40, 117 S.Ct. 1040 (“An analysis of the role played by each element in the context of the specific patent claim will thus inform the inquiry as to whether a substitute element matches the function, way, and result of the claimed element.”). In addition to finding the doctrine of equivalents barred by prosecution history estoppel, the district court concluded that Vizorb® was not equivalent to the “fiberfill batting material” limitation because AquaTex failed to show that “Defendant’s filler layer includes a hydrophobic material, like the fiberfill used in Plaintiffs product, to create air pockets to promote evaporation.” AquaTex, 2006 WL 1006631, at *6 (emphasis added). It appears that the district court concluded that the function of the “fiberfill batting material” was to promote evaporation and that Vizorb® did not achieve this function in the same way (i.e., by the use of hydrophobic material and by the creation of air pockets) as this limitation." }, { "docid": "12144088", "title": "", "text": "correctly determined that there were no genuine issues of material fact regarding infringement under the doctrine of equivalents. Under that doctrine, an accused product that does not literally infringe a structural claim may infringe “if it performs substantially the same function in substantially the same way to obtain the same result.” Graver Tank, 339 U.S. at 608, 70 S.Ct. at 856, 85 USPQ at 330 (quoting Sanitary Refrigerator Co. v. Winters, 280 U.S. 30, 42, 50 S.Ct. 9, 13, 74 L.Ed. 147 (1929)); Hughes Aircraft Co. v. United States, 717 F.2d 1351, 1361, 219 USPQ 473, 480 (Fed.Cir.1983). The doctrine of equivalents, however, is limited by prosecution history estoppel, which “limits a patentee’s reliance on the doctrine of equivalents by preventing him from contending later in an infringement action that his claims should be interpreted as if limitations added by amendment were not present____” Thomas & Betts Corp. v. Litton Sys., Inc., 720 F.2d 1572, 1579, 220 USPQ 1, 6 (Fed.Cir. 1983). Prosecution history estoppel applies both “to claim amendments to overcome rejections based on prior art, and to arguments submitted to obtain the patent.” Hughes Aircraft, 717 F.2d at 1362, 219 USPQ at 481 (citations omitted). When claim 5 of the accused device was originally submitted, the patent examiner rejected it as having been anticipated by the ’222 patent. Because the ’222 patent disclosed a one-part spiral or helical looper horn, the patentee added the limitations that its own horn consists of two “portions,” one of which is “substantially straight” and which has a length “substantially greater” than the other portion. The patentee also added the limitation that the second end portion of its horn is angularly disposed to the first end portion. In the remarks explaining the substitution of claim 30 for claim 27, the patentee emphasized the difference in length between the first and second end portions of the looper horn: The claim describes that the second end portion has a length substantially great er than the length of the first end portion. The patentee also pointed out that the second end portion of the looper horn" }, { "docid": "22250583", "title": "", "text": "the doctrine of equivalents to cover the EMPCO coils. Mannesmann cites Deere & Co. v. International Harvester Co., 460 F.Supp. 523, 534, 200 USPQ 150,159-60 (S.D.Ill.1978), in support of the proposition that “[¡Infringement is not avoided by separating a one-piece element into several parts if the element does accomplish the same result in substantially the same way.” Mannesmann argues that EMPCO should not escape infringement merely because it designed an equivalent structure wherein each pipe is brought into substantial contact with its neighboring pipe by a small bar called a slag-stopping bar. The trial court made no explicit finding as to whether these structures were equivalent, holding instead that Mannesmann was estopped by the prosecution history from asserting such equivalence. The doctrine of prosecution history estoppel is “an equitable tool for determining the permissible scope of patent claims” as against a specific structure accused of infringement. Builders Concrete, 757 F.2d at 258, 225 USPQ at 242. This doctrine bars a patentee from construing its claims in a way that would resurrect subject matter previously surrendered during prosecution of the patent application, and thus prevents a patentee from enforcing its claims against otherwise legally equivalent structures if those structures were excluded by claim limitations added in order to avoid prior art. Stewart-Wamer Corp., 767 F.2d at 1572, 226 USPQ at 682; Thomas & Betts Corp. v. Litton Systems, Inc., 720 F.2d 1572, 1579, 220 USPQ 1, 6 (Fed. Cir.1983). Amendment of claims during patent prosecution does not necessarily bar all benefit of the doctrine of equivalents. In Hughes Aircraft, 717 F.2d at 1363, 219 USPQ at 481, this court rejected the view that any amendment of the claims necessarily confines a patentee to the literal language of the claims: Depending on the nature and purpose of an amendment, it may have a limiting effect within a spectrum ranging from great to small to zero. The effect may or may not be fatal to application of a range of equivalents broad enough to encompass a particular accused product. It is not fatal to application of the doctrine itself. See also Loctite Corp.," }, { "docid": "11658109", "title": "", "text": "genuine dispute of fact. Moeller contends that the allegedly infringing Ionetics Electrode System is disclosed in U.S. Patent No. 4,340,457, Ion Selective Electrodes, to J. Kater, the president of Ionetics. In his declaration, Mr. Kater appears to equate the electrode body with the insulating tube (in asserting that the electrode body does not support the membrane) whereas Dr. J. Leonard, another of Ionetics’ experts, declares that “the insulator tube is not an electrode body.” The district court acknowledged that “there are some ambiguities in defendant’s experts’ description of the device” but found the differences to be immaterial, apparently in light of the simplicity of the device. As stated supra, we do not agree with the judge’s characterization of simplicity. Moreover, we reiterate that all inferences in a summary judgment motion must be drawn in favor of the nonmovant. This the district court failed to do. D. Prosecution History Estoppel Even if there is no literal infringement, there can be infringement under the doctrine of equivalents. Atlas Powder v. Ed. duPont de Nemours & Co., 750 F.2d 1569, 1579, 224 USPQ 409, 416 (Fed.Cir.1984) . If the accused device and claimed invention perform substantially the same function in substantially the same way to give substantially the same result, there is equivalence. Id. The district court acknowledged a legitimate factual dispute on equivalence. However, it ruled as a matter of law that prosecution history estoppel necessarily precluded the patentee here from covering the accused device under the doctrine of equivalents. We disagree. The district court used what it perceived as an “unambiguous” prosecution history to limit severely coverage under the ‘129 patent. We do not view the prosecution history in that light, and have the benefit of cases decided after the district court opinion, specifically Loctite Corp. v. Ultraseal, 781 F.2d 861, 228 USPQ 90 (Fed.Cir.1985) . The grant of summary judgment is also unsupportable so far as based on prosecution history estoppel. (1) Prosecution History The original application, filed by Professor Wilhelm Simon, contained claims 1 and 2: 1. An electrode system used for measuring ion activities and having a membrane," }, { "docid": "1033975", "title": "", "text": "under the doctrine of equivalents requires that the accused product contain each limitation of the claim or its equivalent. Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 40, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). An element in the accused product is equivalent to a claim limitation if the differences between the two are insubstantial. The analysis focuses on whether the element in the accused device “performs substantially the same function in substantially the same way to obtain the same result” as the claim limitation. Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 339 U.S. 605, 608, 70 S.Ct. 854, 94 L.Ed. 1097 (1950) (internal quotation omitted). Prosecution history estoppel can prevent a patentee from relying on the doctrine of equivalents when the patentee relinquishes subject matter during the prosecution of the patent, either by amendment or argument. Pharmacia & Upjohn Co. v. Mylan Pharm., Inc., 170 F.3d 1373, 1376-77 (Fed.Cir.1999). “The doctrine of prosecution history estoppel limits the doctrine of equivalents when an applicant makes a narrowing amendment for purposes of patentability, or clearly and unmistakably surrenders subject matter by arguments made to an examiner.” Salazar, at 1344; see Festo II, 535 U.S. at 736, 122 S.Ct. 1831 (narrowing amendment for purposes of patentability); Eagle Comtronics, Inc. v. Arrow Communication Labs., Inc., 305 F.3d 1303, 1316 (Fed.Cir.2002) (argument-based estoppel). While at least one claim limitation was added here to overcome an anticipation rejection during the prosecution of the patent, Techniche does not allege amendment-based estoppel. Instead it asserts argument-based estoppel. To invoke argument-based estoppel, the prosecution history “must evince a clear and unmistakable surrender of subject matter.” Pharmacia, 170 F.3d at 1377 (internal quotation omitted). To determine if subject matter has been relinquished, an objective test is applied, inquiring “whether a competitor would reasonably believe that the applicant had surrendered the relevant subject matter.” Cybor Corp., 138 F.3d at 1457. We do not see the clear and unmistakable surrender of subject matter required to invoke argument-based prosecution history estoppel. During prosecution of the ’977 patent AquaTex stated that “the ’297 Patent fails to disclose or" }, { "docid": "12144087", "title": "", "text": "(2) that this longer portion must be substantially straight. In addition, the horn must be rotatable by a bearing means that supports the shorter part of the horn. Furthermore, the longer part of the horn must “be angularly disposed with respect to” the shorter part of the horn. The district court correctly determined that the accused device differs markedly from the horn claimed in the ’853 patent. See Townsend Eng’g, 1 USPQ2d at 1989-90. Unlike the two-part device claimed in the '853 patent, the accused device consists of a single piece of plastic tubing. While the patented device rotates, the accused device oscillates between two points. Furthermore, although the patented device has two portions, one of which is “substantially straight,” the accused device consists of a single piece that is continuously curved along its entire length. Because the accused device does not embody every element of claim 5 of the ’853 patent, the district court correctly granted HiTec's motion for summary judgment on the literal infringement issue. B. Doctrine of Equivalents. The district court also correctly determined that there were no genuine issues of material fact regarding infringement under the doctrine of equivalents. Under that doctrine, an accused product that does not literally infringe a structural claim may infringe “if it performs substantially the same function in substantially the same way to obtain the same result.” Graver Tank, 339 U.S. at 608, 70 S.Ct. at 856, 85 USPQ at 330 (quoting Sanitary Refrigerator Co. v. Winters, 280 U.S. 30, 42, 50 S.Ct. 9, 13, 74 L.Ed. 147 (1929)); Hughes Aircraft Co. v. United States, 717 F.2d 1351, 1361, 219 USPQ 473, 480 (Fed.Cir.1983). The doctrine of equivalents, however, is limited by prosecution history estoppel, which “limits a patentee’s reliance on the doctrine of equivalents by preventing him from contending later in an infringement action that his claims should be interpreted as if limitations added by amendment were not present____” Thomas & Betts Corp. v. Litton Sys., Inc., 720 F.2d 1572, 1579, 220 USPQ 1, 6 (Fed.Cir. 1983). Prosecution history estoppel applies both “to claim amendments to overcome rejections based on" }, { "docid": "12302943", "title": "", "text": "which the Sen-trex machines and the ’912 patent claims may be distinguished, we do not address this issue. Jonsson’s ninth and final assignment of error is that “[tjhere are genuine issues of material fact as to the issue of infringement under the doctrine of equivalents.” Under the “doctrine of equivalents,” “an accused product that does not literally infringe a structural claim may infringe ‘if it performs substantially the same function in substantially the same way to obtain the same result.’ ” Townsend Eng’g Co., 829 F.2d at 1090, 4 USPQ2d at 1139 (quoting Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 339 U.S. 605, 608, 70 S.Ct. 854, 856, 94 L.Ed. 1097, 85 USPQ 328, 330 (1950)). The determination of infringement under the doctrine is a question of fact. See id. 829 F.2d at 1089, 4 USPQ2d at 1138 (citing Graver Tank, 339 U.S. at 609, 70 S.Ct. at 856-57, 85 USPQ at 331). It is well established, however, that “[tjhe doctrine of equivalents ... is limited by prosecution history estoppel, which ‘limits a patentee’s reliance on the doctrine of equivalents by preventing him from contending later in an infringement action that his claims should be interpreted as if limitations added by amendment were not present_’” Id. 829 F.2d at 1090, 4 USPQ2d at 1139 (quoting Thomas & Betts Corp. v. Litton Sys., Inc., 720 F.2d 1572, 1579, 220 USPQ 1, 6 (Fed.Cir.1983)). See also E.I. du Pont de Nemours, 849 F.2d at 1438, 7 USPQ2d at 1135; Hi-Life Prods., Inc. v. American Nat’l Water-Mattress Corp., 842 F.2d 323, 325, 6 USPQ2d 1132, 1134 (Fed.Cir.1988). We have already determined that the district court did not err in its determination that Jonsson is estopped from asserting that his ’912 patent is infringed by Stanley’s Sentrex devices. Hence, Jonsson’s equivalency argument has no merit. CONCLUSION The district court did not err in its determination that there are no genuine issues of material fact, and that Stanley’s Sentrex and Sentrex 2 automatic door opening systems do not infringe Jonsson’s ’251 and ’912 patents. Accordingly, the decision of the district court is" }, { "docid": "15822672", "title": "", "text": "is no genuine issue as to whether the accused product is covered by the claims (as construed by the court). See Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1304 (Fed.Cir.1999). For there to be infringement under the doctrine of equivalents, the accused product or process must embody every limitation of a claim, either literally or by an equivalent. Warner-Jenkinson, 520 U.S. at 41, 117 S.Ct. 1040. An element is equivalent if the differences between the element and the claim limitation are “insubstantial.” Zelinski v. Brunswick Corp., 185 F.3d 1311, 1316 (Fed.Cir.1999). One test used to determine “insubstantiality” is whether the element performs substantially the same function in substantially the same way to obtain substantially the same result as the claim limitation. See Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 608, 70 S.Ct. 854, 94 L.Ed. 1097 (1950). This test is commonly referred to as the “function-way-result” test. The mere showing that an accused device is equivalent overall to the claimed invention is insufficient to establish infringement under the doctrine of equivalents. The patent owner has the burden of proving infringement under the doctrine of equivalents and must meet its burden by a preponderance of the evidence. See SmithKline Diagnostics, Inc. v. Helena Lab. Corp., 859 F.2d 878, 889 (Fed.Cir.1988) (citations omitted). The doctrine of equivalents is limited by the doctrine of prosecution history estoppel. In Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd., 535 U.S. 722, 122 S.Ct. 1831, 152 L.Ed.2d 944 (2002) (“Festo VII”), the Supreme Court stated: Prosecution history estoppel ensures that the doctrine of equivalents remains tied to its underlying purpose. Where the original application once embraced the purported equivalent but the paten-tee narrowed his claims to obtain the patent or to protect its validity, the pat-entee cannot assert that he lacked the words to describe the subject matter in question. The doctrine of equivalents is premised on language’s inability to capture the essence of innovation, but a prior application describing the precise element at issue undercuts that premise. In that instance the prosecution history has established that" }, { "docid": "1033974", "title": "", "text": "(May 5, 2000). While we adhere to the adage that limitations from the specification must not be imported into the claims, see, e.g., Nazomi Communications, Inc. v. Arm Holdings, PLC, 403 F.3d 1364, 1369 (Fed.Cir.2005), based upon the teachings of the specification, one of ordinary skill in the textile manufacturing industry would understand that commercial “fiberfill batting material” is made of synthetic or polyester fibers. The combined teachings within the specification of the ’977 patent, the patents incorporated by reference, and the consistent interpretations in the industry publications would lead one skilled in the art to this conclusion. Therefore, we affirm the district court’s determination that the accused Techniche products do not literally infringe claims 1 and 9 of the ’977 patent. However, “[t]he doctrine of equivalents allows the patentee to claim those insubstantial alterations that were not captured in drafting the original patent claim but which could be created through trivial changes.” Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S. 722, 733, 122 S.Ct. 1831, 152 L.Ed.2d 944 (2002) (“Festo II”). Infringement under the doctrine of equivalents requires that the accused product contain each limitation of the claim or its equivalent. Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 40, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). An element in the accused product is equivalent to a claim limitation if the differences between the two are insubstantial. The analysis focuses on whether the element in the accused device “performs substantially the same function in substantially the same way to obtain the same result” as the claim limitation. Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 339 U.S. 605, 608, 70 S.Ct. 854, 94 L.Ed. 1097 (1950) (internal quotation omitted). Prosecution history estoppel can prevent a patentee from relying on the doctrine of equivalents when the patentee relinquishes subject matter during the prosecution of the patent, either by amendment or argument. Pharmacia & Upjohn Co. v. Mylan Pharm., Inc., 170 F.3d 1373, 1376-77 (Fed.Cir.1999). “The doctrine of prosecution history estoppel limits the doctrine of equivalents when an applicant makes a narrowing amendment for purposes" }, { "docid": "22250582", "title": "", "text": "avoids literal infringement of the claims. Estoppel Mannesmann argues that even if literal infringement does not lie, the district court clearly erred in finding no infringement by equivalents. Mannesmann argues that the EMPCO structure “performs substantially the same function in substantially the same way to obtain the same result”, the standard for equivalency discussed in Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 608, 70 S.Ct. 854, 856, 94 L.Ed. 1097, 85 USPQ 328, 330 (1950) (quoting Sanitary Refrigerator Co. v. Winters, 280 U.S. 30, 42, 50 S.Ct. 9, 13, 74 L.Ed. 147, 3 USPQ 40, 44 (1929)). The district court held that Mannesmann is estopped to assert infringement by equivalents, as applied to the Zang claims and the EMPCO structure, because of Zang’s amendments and arguments during prosecution of the patent application. Specifically, the district court held that the insertion into clause (d) of the limitation that neighboring sections of cooling pipe coil be arranged “in a contacting relation”, rather than “closely adjacent” as originally phrased, bars recourse to the doctrine of equivalents to cover the EMPCO coils. Mannesmann cites Deere & Co. v. International Harvester Co., 460 F.Supp. 523, 534, 200 USPQ 150,159-60 (S.D.Ill.1978), in support of the proposition that “[¡Infringement is not avoided by separating a one-piece element into several parts if the element does accomplish the same result in substantially the same way.” Mannesmann argues that EMPCO should not escape infringement merely because it designed an equivalent structure wherein each pipe is brought into substantial contact with its neighboring pipe by a small bar called a slag-stopping bar. The trial court made no explicit finding as to whether these structures were equivalent, holding instead that Mannesmann was estopped by the prosecution history from asserting such equivalence. The doctrine of prosecution history estoppel is “an equitable tool for determining the permissible scope of patent claims” as against a specific structure accused of infringement. Builders Concrete, 757 F.2d at 258, 225 USPQ at 242. This doctrine bars a patentee from construing its claims in a way that would resurrect subject matter previously surrendered" }, { "docid": "23062491", "title": "", "text": "coil at \"a point near, but spaced from, the grounded end thereof’ (claims 1 to 10 or \"intermediate the ends thereof' (claims 11 and 12)). [Emphasis added.] . Validity of the properly construed claim would be a potential issue on such a remand. . In SRI International v. Matsushita Electric Corp., 775 F.2d 1107, 227 USPQ 577 (Fed.Cir.1985) (in banc), this court reversed a grant of summary judgment because of the presence of genuine issues of material fact relating to the reverse doctrine of equivalents. The present case arises after a full trial on the application of the doctrine of equivalents. Whether differences were correctly found by the district court between the accused devices and other claim clauses is irrelevant where, as here, the differences in clauses (h) and (i) are such as to cause the accused devices to operate as wholes in a way not substantially the same as that in which the claimed devices operate as wholes. . Perkin-Elmer’s repeated assertions that the claimed and accused devices perform substantially the same function and achieve substantially the same end result are not helpful. That circumstance is commonplace when the devices are sold in competition. That a claimed invention and an accused device may perform substantially the same function and may achieve the same result will not make the latter an infringement under the doctrine of equivalents where it performs the function and achieves the result in a substantially different way. Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 608, 70 S.Ct. 854, 856, 94 L.Ed. 1097, 85 USPQ 328, 330 (1950); see, e.g., Sealed Air Corp. v. U.S. International Trade Comm’n, 645 F.2d 976, 984, 209 USPQ 469, 476 (CCPA 1981). . The words “helical resonator\" appear nowhere in the patent and Gabriel’s invention is described nowhere in the prosecution history as incorporating a helical resonator. Gabriel specifically described and specifically claimed in detail a single embodiment of a particular resonator coupler, with each of its structural elements, relationships, and functions expressed in the claim. Nothing in the patent provides support for expanding the" }, { "docid": "3750604", "title": "", "text": "also conclude that the EX-CALI-BAR does infringe this limitation of the ’166 patent under the doctrine of equivalents, as a matter of law. The court finds that the grooves on the EXCALI-BAR are “equivalents” to this limitation of the ’166 patent, because, as Automatic argues, “ ‘the substitute element matches the function, way, and result of the claimed element,’ ” and plainly does not “ ‘play[ ] a role substantially different from the claimed element.’ ” Tronzo, 156 F.3d at 1160 (quoting Warner-Jenkinson, 520 U.S. 17, 117 S.Ct. at 1054); Comark Communications, Inc., 156 F.3d at 1188-89; Ethicon Endo-Surgery, Inc., 149 F.3d at 1315. Indeed, Dethmers has not argued otherwise, instead founding its motion for summary judgment of non-infringement of this limitation under the doctrine of equivalents on the unavailability of that doctrine by reason of prosecution history estoppel. However, Automatic has generated a genuine issue of material fact on the applicability of prosecution history estoppel by coming forward with evidence that the amendment first using “inward-groove circularly surrounding” was simply to replace the phrase “indentation arrayed about” in the interest of clarity, not to overcome any prior art rejection. The court acknowledges that there is a presumption that where a patent owner cannot show a reason for the amendment other than patentability, “a court should presume that the purpose behind the ... amendment is such that prosecution history estoppel would apply.” Warner-Jenkinson, 520 U.S. 17, 117 S.Ct. at 1054; Litton Sys., Inc., 140 F.3d at 1456. However, that presumption is no.t irrebutable. See Hilton Davis Chem. Co. v. Warner-Jenkinson Co., 114 F.3d 1161, 1163 (Fed.Cir.1997) (per curiam), (appellate decision upon remand from the Supreme Court remanding to the district court to determine whether the presumption established by the Supreme Court could be rebutted by the patentee). Furthermore, although “an amendment made for reasons other than patentability may still give rise to an estoppel,” the court cannot find on this record that there is the necessary “clear and unmistakable surrender” of equivalents to the literal terms of this limitation. See Litton Sys., Inc., 140 F.3d at 1458. Therefore, Dethmers’ motion" }, { "docid": "22293628", "title": "", "text": "finding is against the heavy weight of the evidence. There was not substantial evidence supporting the finding of non-equivalence. However, the ALJ correctly recognized that prosecution history estoppel limits the application of the doctrine of equivalents, even when the function/way/result or other test of equivalency is met by the accused devices. Prosecution history estoppel implements the principle that a patentee can not obtain, in an infringement suit, protection of subject matter that was relinquished in order to obtain allowance of other subject matter during prosecution of the patent application. Mannesmann Demag Corp. v. Engineered Metal Prods. Co., 793 F.2d 1279, 1285, 230 USPQ 45, 48 (Fed.Cir.1986) (the relinquished subject matter must be material to the issuance of the patent). The standard for determining whether particular subject matter was relinquished and was material is an objective one which we determine as a matter of law, LaBounty Mfg., Inc. v. United States Int’l Trade Comm’n, 867 F.2d 1572, 1576, 9 USPQ2d 1995, 1998 (Fed.Cir.1989), and is based on the reasonable reading, by a person of skill in the field of the invention, of the entire prosecution history. We have discussed the prosecution history ante, and concluded that in connection with the patent application that led to the ’580 patent, Modine relinquished the range of hydraulic diameters that extended to 0.070 inch, based in substantial part on the hydraulic diameter of the prior art Cat-Folded Front condenser. Although Modine points out that the ’580 invention differs in several respects from the Cat condenser, the prosecution history shows that the hydraulic diameter of the Cat condenser was a factor in limitation of the ’580 claims. The change in the description of the hydraulic diameter in the specification from grandparent to parent/child application, and the arguments to the patent examiner, highlighted the applicant’s action in distinguishing the ’580 claims from the Cat condenser. Thus we conclude that the available range of equivalency is limited, by estoppel, to the hydraulic diameter of the Cat condenser. Within this boundary, however, the prosecution history and the prior art do not eliminate equivalents if substantial identity is shown. The" }, { "docid": "21717261", "title": "", "text": "favoring the non-movant as well as that ‘evidence supporting the moving party that is uncontradict-ed and unimpeached, at least to the extent that evidence comes from disinterested witnesses.’ ” Id (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-251, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)) To defeat a motion for summary judgment, Rule 56(c) requires the non-moving party to show that there is more than “some metaphysical doubt as to the material facts.... In the language of the Rule, the non-moving party must come forward with ‘specific facts showing that there is a genuine issue for trial.’ ” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed. R.Civ.P. 56(c)). 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). II. Discussion To determine whether an accused device infringes under the doctrine of equivalents, a court examines whether the differences between the claimed invention and the accused device are insubstantial. Dawn Equip. Co. v. Kentucky Farms, Inc., 140 F.3d 1009, 1015-16 (Fed.Cir.1998). This inquiry generally involves determining whether “the element of the accused device at issue performs substantially the same function in substantially the same way, to achieve substantially the same result, as the limitation at issue in the claim.” Id. at 1016 (describing the “function/way/result” inquiry). Conclusory statements are not enough to sustain a claim of equivalence. See Intellicall, Inc. v. Phonometrics, Inc., 952 F.2d 1384, 1389 (Fed.Cir.1992). And, to demonstrate infringement under the doctrine of equivalents, “a patentee must... provide particularized testimony and linking argument as to the ‘insubstan-tiality of the differences’ ” between the asserted patent and the accused product. Texas Instruments Inc. v. Cypress Semiconductor, Corp., 90 F.3d 1558, 1567 (Fed.Cir.1996). Further, infringement by equivalence is not subsumed by literal infringement and, therefore, evidence of literal infringement, alone, does not establish infringement under the doctrine of equivalents. See Id.; see also Zelinski v. Brunswick Corp.," } ]

[ { "docid": "3276650", "title": "", "text": "Fifth Circuit, we believe “that Congress did not intend to condition a claimant’s right to sue under Title VII on fortuitous circumstances or events beyond his control which are not spelled out in the statute.” Put another way, we cannot believe that Congress willed the subversion of Section 717(c) by an incompatible invocation of imputed notice. We hold that the 30-day period for filing suit did not begin to run until appellant actually received the Board’s decision; and it follows that his suit, brought 28 days later, was timely. The judgment appealed from is accordingly reversed, and the case is remanded to the District Court for further proceedings consistent with this opinion. Reversed and remanded. . Pub.L. No. 92-261, 86 Stat. 103 (1972), as amended, 42 U.S.C. §§ 2000e et seq. (Supp. V 1975). . See, e. g., Morton v. Mancari, 417 U.S. 535, 547, 94 S.Ct. 2474, 2481, 41 L.Ed.2d 290, 298 (1974); Hackley v. Roudebush, 171 U.S.App. D.C. 376, 404, 410 n.138, 416, 520 F.2d 108, 136, 142 n.138, 148 (1975); Douglas v. Hampton, 168 U.S.App.D.C. 62, 67, 512 F.2d 976, 981 (1975); Womack v. Lynn, 164 U.S.App.D.C. 198, 504 F.2d 267 (1974). . Pub.L. No. 88-352, tit. VII, §§ 701 et seq., 78 Stat. 253 (1964), as amended, 42 U.S.C. §§ 2000e et seq. (1970). . “Within thirty days of receipt of notice of final action taken by a department, agency or unit referred to in subsection (a) of this section, or by the Civil Service Commission upon an appeal from a decision or order of such department, agency, or unit on a complaint of discrimination based on race, color, religion, sex or national origin, brought pursuant to subsection (a) of this section, ... an employee . . ., if aggrieved by the final disposition of his complaint, . . . may file a civil action as provided in section 2000e-5 of this title, in which civil action the head of the department, agency, or unit, as appropriate, shall be the defendant.” Equal Employment Act of 1972, tit. VII, § 717(c), 42 U.S.C. § 2000e-16(c) (Supp. V" } ]

[ { "docid": "23669541", "title": "", "text": "Civil Rights Act of 1964, 42 U.S.C. § 2000e-16(c) (1976). See 29 U.S.C. § 794a(a)(l) (Supp. Ill 1979). Section 717(c) allows the aggrieved employee to file a civil action “as provided in section 2000e-5 of this title;” section 2000e-5(f)(3) places the jurisdiction of actions allowed therein in the district courts. Therefore Wiggins’ proper remedy lies not in an appeal to this court, but rather in an original civil action filed in the district courts. Our conclusion is buttressed by the legislative history of section 7703. Prior to the Civil Service Reform Act of 1978 (the Act), employees who sought to challenge final decisions of the Civil Service Commission were generally required to file their claims in the district courts. However, appeals to such a large number of courts “caused wide variations in the kinds of decisions which [had] been issued on the same or similar matters;” in order to remedy this problem, the Congress provided in section 7703 that final orders of the Board (which, along with the Office of Personnel Management, has replaced the Civil Service Commission) generally be reviewable by the Court of Claims and the courts of appeals. S.Rep.No. 95-969, 95th Cong., 2nd Sess. 63 (1978), reprinted in [1978] U.S. Code Cong. & Ad. News 2723, 2785. But the Congress was careful to except from this change in appellate jurisdiction all eases involving complaints of discrimination. Review in such cases was left to original actions brought in the district courts; this procedure was adopted in order to protect “the existing rights of employees to trial de novo” in discrimination cases. H.R.Conf.Rep.No. 95-1717, 95th Cong., 2nd Sess. 141 (1978), reprinted in [1978] U.S. Code Cong. & Ad. News 2860, 2874. As the Senate Report on the Act explains: District court is a more appropriate place than the Court of Appeals for these cases since they may involve additional fact-finding. Furthermore, discrimination complaints involving employees outside the Federal government are now considered by U.S. District Courts. To encourage uniformity in judicial decisions in this area both kinds of cases should continue to be considered by the U.S. District Court." }, { "docid": "1514848", "title": "", "text": "alleged in the complaint do not make out an equal protection violation, we see no purpose in remanding this case for determination of Towers’s constitutional claim. Towers is not a prevailing party within the meaning of the Equal Access to Justice Act. He therefore may not recover attorney’s fees under that Act. The judgment of the district court is REVERSED and judgment is RENDERED for the defendants. . GS-13 and GS-14 are two of the eighteen gradations of difficulty and responsibility established by the \"General Schedule\". 5 U.S.C. § 5104. . United States Civil Service Commission, Position Classification Standards, General Attorney Series, GS-905-0 (as amended May 1974). . Pub.L. No. 95-454, 92 Stat. 1111 (codified as amended in scattered sections of Title 5 of the U.S.Code). . 124 Cong.Rec. S14.268 (statement of Sen. Ribi-coff), reprinted in House Comm, on Post Office and Civil Service, 96th Cong., 1st Sess., Legislative History of the Civil Service Reform Act of 1978, at 1608 (Comm.Print 1979) (\"Legislative History”). . 124 Cong.Rec. S14,278 (statement of Sen. Sas-ser), reprinted in Legislative History at 1629. . 5 U.S.C. § 1205. . Id. § 1201. . Id. § 1206. . Civil Service Reform: Hearings on H.R. 11280 Before the House Comm, on Post Office and Civil Service, 95th Cong., 2d Sess. 820 (1978) (memorandum from Office of Legal Counsel, U.S. Dept, of Justice), U.S.Code Cong. & Admin. News 1978, p. 2723. . Adverse actions include removal, suspension for more than fourteen days, reduction in pay or grade, and a furlough of thirty days or less. 5 U.S.C. §§ 7512, 7513(d), 4303(e). . Id. §§ 7701, 7703. . Id. § 2302. . Id. § 1206. The OSC may also negotiate directly with the agency. . The District of Columbia Circuit has held that, if the OSC recommends that MSPB take corrective action, the MSPB’s order is reviewable in the court of appeals. Frazier v. Merit Systems Protection Board, 672 F.2d 150 (D.C.Cir.1982). That circuit has further concluded that the employee may be able to obtain judicial review of the OSC's decision not to pursue a complaint limited to whether" }, { "docid": "23705500", "title": "", "text": "discontent, Congress transferred jurisdiction over federal employee discrimination claims brought under the EEOA from the CSC to the EEOC. Congress also adopted the CSRA, abolished the CSC, and established the MSPB, as one of two agencies in its place. See generally Barbara L. Schlei & Paul Grossman, Employment Discrimination Law 1188-90 (2d ed. 1983) (collecting legislative history). Although the CSRA and EEOA contain a division of jurisdiction between the two agencies, there is also substantial interplay and overlap. 5 U.S.C. § 7702. Depending on status and type of claim, federal employees may have up to five options for pursuing a discrimination claim. 5 U.S.C. §§ 7701, 7702, 7121. See Lee M. Modjes-ka, Employment Discrimination Law § 2.7 (2d Ed. supp. 1991). The legislative history to § 7703(b)(2) seems to contain few clues indicating any separate purpose for the 30-day deadline, see, e.g., S.Rep. No. 969, 95th Cong., 2d Sess. 63-64, reprinted in 1978 U.S.C.C.A.N. 2723, 2785-86. And in 1991, when Congress increased from 30 to 90 days the time allotted for judicial review under 42 U.S.C. § 2000e-16(c), it simply assumed that the new time limits would apply to all federal employees with Title VII claims against the federal government. Sen.Rep. on Pub.L. No. 102-166 § 114, reprinted in 1991 U.S.C.C.A.N. 549, 623. . As a permanent employee covered by 5 U.S.C. § 7511(a)(1), plaintiff here seems to have had an initial option of pursuing her disability discrimination claim through the agency's EEO grievance procedure with a choice of appeal to either the EEOC or the MSPB, or bringing her claim directly to the MSPB. If she was subject to a bargaining agreement with a grievance procedure, she would have had additional options. 5 U.S.C. §§ 7103, 7111, 7121, 7701-7702; 42 U.S.C. § 2000e-16(a) to (c). See Vinieratos v. United States, 939 F.2d 762, 767-768 (9th Cir.1991) (describing options open to federal employees under Labor-Management Relations Act). It is not clear to us by which method plaintiff’s case began in the DLA, but no issue has been raised concerning it. . King's conclusion that 5 U.S.C. § 7703(b)(2) was \"jurisdictional”" }, { "docid": "23645790", "title": "", "text": "was filed more than 90 days after the notice letter was delivered to the residence of the complainant and received there by his wife. Mouriz insisted that the 90 days should not begin when the letter was delivered to his home but should begin when it came to his personal attention, and was read by him several days later. The court rejected this subjective, open-ended extension of the filing period and held that the time began when the letter was delivered to Mouriz’s residence. In Huckeby we stated that the right to bring a Title VII action was extinguished after the lapse of 90 days from the right-to-sue notification to the complainant’s lawyer. The discussion in Huckeby is interesting, but again it is merely dictum, for the issue before the court was not whether the notice to the lawyer triggered the running of the 90 day period. The issue in Huckeby was whether, after the 90 day period had ended, one’s complaint could be salvaged by intervening in another complainant’s suit. We held that the court lacked jurisdiction to consider the appeal as no final judgment had been entered, and did not reach even the issue sought to be reviewed. We are aware of other decisions under Title VII, particularly those applying 42 U.S.C. § 2000e-16, the section involving discrimination in federal employment. That section provides for a 30 day period for the filing of suit. Other circuits have held that this 30 day period is triggered by receipt of notice by the complainant, but not by the complainant’s attorney. See Rea v. Middendorf, 587 F.2d 4 (6th Cir. 1978); Craig v. Department of Health, Education and Welfare, 581 F.2d 189 (8th Cir. 1978); and Bell v. Brown, 557 F.2d 849 (D.C.Cir.1977) (rationale relied upon by district judge as lending support to a similar interpretation of the section now before us). These cases were, however, primarily premised upon the principle that great deference should be given to the interpretations of statutory language by the Civil Service Commission, the agency charged with the administration of those provisions. Those interpretations require the" }, { "docid": "5892260", "title": "", "text": "Petitioner, an attorney and former employee of the Department of the Army, was discharged by the Army for inefficiency in April 1980. This removal was upheld by the St. Louis Field Office of the Merits Systems Protection Board. Petitioner sought review by the Board itself, but such review was denied by the Board on January 6, 1981. Petitioner then filed his petition for review by this court, stating that he received the opinion and order of the Board on January 10, 1981. The petition in this court was filed on February 10, 1981, 31 days after Mr. Reeves’ admitted receipt of the Board’s decision denying him review. This lateness is admitted by petitioner. The Government moves to dismiss the appeal to this court as untimely. We agree. The Civil Service Reform Act of 1978, 5 U.S.C. § 7703(b)(1) (Supp. Ill 1979), expressly provides: * * * Notwithstanding any other provision of law, any petition for [judicial] review must be filed within 30 days after the date the petitioner received notice of the final order or decision of the board, [emphasis added]. Our Rule 172(a)(1) incorporates this requirement. Petitioner claims that his \"appeal” was properly and timely sent by registered mail to the clerk of this court, but that a delay in the mails occasioned this court’s late receipt of the petition. However, petitioner did not mail his \"appeal” much or well before the due date. In view of the statute’s explicit and mandatory requirement that the petition for review \"must” be filed within 30 days, it is no excuse that the mails were somewhat late. See Jenkins v. United States, ante at 794, decided this day by order, and see, also Coleman v. Department of the Army, 227 Ct.Cl. 536 (1981). Accordingly, without oral argument, the Government’s motion to dismiss is granted and petitioner’s petition for review is dismissed as untimely." }, { "docid": "18592789", "title": "", "text": "letter on November 16, 1983. Plaintiff did not file suit until February 27, 1984. Plaintiff exceeded his ninety day time period and equitable tolling does not apply. The judgment of the district court accordingly is AFFIRMED. . The portion of the statute at issue here is: \"... the Commission ... shall so notify the person aggrieved and within ninety days after the giving of such notice, a civil action may be brought....” 42 U.S.C. § 2000e-5(f)(l) (1982). . Claimant resided at an address different from his mailing address. His grandmother, sister and nine-year-old nephew lived at his mailing address. 495 F.2d at 403. . The EEOC did receive a return receipt, but it could not be located to determine who signed it. 673 F.2d at 1241. . The court recognized that other equitable reasons might toll the time period. . The court characterized as dicta language in Franks suggesting constructive notice is inapplicable to Title VII cases. 754 F.2d at 1250, 1250 n. 2. Courts have split on the question whether a claimant is constructively notified when his attorney receives notice. Compare Jones v. Mad ison Service Corp., 744 F.2d 1309 (7th Cir.1984) (held receipt by claimant’s attorney commenced running of time period) and Harper v. Burgess, 701 F.2d 29 (4th Cir.1983) with Cooper v. Lewis, 644 F.2d 1077, 1082-87 (5th Cir. Unit A 1981) and Rea v. Middendorf, 587 F.2d 4 (6th Cir.1978) (construing § 2000e-16(c) and specific regulations concerning rights of government employees). . We choose the date when notice is mailed to a claimant who has moved and has not notified the EEOC of a change of address because any other date would be very difficult to determine and would depend upon a variety of circumstances. . We consider the issue in the present case— what the legal consequences are when a claimant fails to provide the EEOC with her correct current mailing address — to be a threshold question, the resolution of which does not affect the analysis whether the doctrine of constructive receipt applies to § 2000e-5(f)(1) cases. Accord St. Louis, 744 F.2d at 1316-17;" }, { "docid": "23065583", "title": "", "text": "TSA, Fort Lewis, WA and will be submitted upon receipt. Apparently the Army has been unable to locate these documents, which are not included in the MSPB record and, therefore, not before this court. As petitioner points out, 5 U.S.C. § 7513(e) (1982) states, inter alia, that “the answer of the employee [to the notice of proposed action] when written ... shall be maintained by the agency and shall be furnished to the Board upon its request and to the employee affected upon the employee’s request.” See also, 5 C.F.R. §§ 752.406, 1201.25(a)(4) (1982). As a preliminary matter, respondent argues that since petitioner did not raise this issue before the MSPB, she is precluded from raising it on appeal to this court. See Grover v. United States, 200 Ct.Cl. at 345. Respondent’s argument is premised on the assumption that petitioner was on notice that the Army might not have provided the missing documents to the MSPB. The evidence which respondent relies upon is the letter of August 12,1981, mentioned earlier, in which the Army stated that it had inadvertently misplaced the documents, but that they “will be submitted upon receipt.” We agree with petitioner that this letter can hardly be considered “notice” that the documents would not be provided. We therefore conclude that petitioner is not barred from raising this issue on appeal. As this court recognized in Shaw v. United States Postal Service, 697 F.2d 1078 (Fed.Cir.1983), the Civil Service Reform Act of 1978, Pub.L. No. 95-454, 92 Stat. 1111 (codified in scattered sections of 5 U.S.C.), specifically states that procedural errors can vitiate the agency’s decision only if they are “harmful.” Id. at 1080 and citations; see 5 U.S.C. § 7701(c)(2)(A) (1982). By regulation, the MSPB places the burden on the petitioner to show that the error was harmful, i.e., “caused substantial harm or preju dice to his/her rights. 56(c)(3) (1982). 5 C.F.R. § 1201.- Petitioner asserts that this court cannot assess whether the error was harmful, as there is no opportunity for this court to review the missing documents, and a remand to the MSPB is therefore" }, { "docid": "21921067", "title": "", "text": "the Office of Personnel Management (“OPM”). A central purpose of this bifurcation was “to insure that those who are responsible for administering the civil service system will not have the primary responsibility of determining whether that system is free from abuse.” S.Rep.No.95-969, 95th Cong., 2d Sess. 24 (1978), reprinted in II House Committee on Post Office and Civil Service, 96th Cong., 1st Sess., Legislative History of the Civil Service Reform Act of 1978, at 1461, 1488 (1979) [hereinafter cited as Legislative History], U.S.Code Cong. & Admin. News 1978, p. 2723. In accord with this aim, the Act transferred to the OPM the CSC’s responsibility as the central personnel administrator of the civil service system-. 5 U.S.C. § 1103 (Supp. III 1979); H.R.Rep.No.95-1403, 95th Cong., 2d Sess. 4, 6 (1978), reprinted in I Legislative History at 636, 641, 643; S.Rep.No.95-969, supra, at 24, reprinted in II Legislative History at 1488, U.S.Code Cong. & Admin. News 1978, p. 2746. The MSPB inherited the appellate authority that had been vested in the CSC. 5 U.S.C. § 1205(a)(1) (Supp. III 1979); see H.R.Rep.No.95-1403, supra, at 6, reprinted in I Legislative History at 643. Because the Act effected changes in the types of actions over which the MSPB has jurisdiction, the MSPB’s jurisdiction differs in many respects from that once exercised by the CSC. As a result of the amendment to sectión 2105(c), petitioners argue, the exclusion of nonappropriated fund personnel from “employee” status is not operative with respect to appeals taken to the MSPB, because the MSPB, and not the OPM, is said to “administer” the laws governing the appellate process. In the absence of an express exception, petitioners continue, they may avail themselves of the rights of appeal granted under various provisions of the CSRA. In both of the decisions on review, the MSPB rejected these arguments on the authority of its earlier decision in Taylor v. Department of the Navy, 2 M.S.P.B. 6 (1980), reprinted at J.A. 90. Like petitioners, Taylor was a nonappropriated fund employee who sought MSPB review of her job termination, presenting arguments based on the CSRA, particularly the" }, { "docid": "18315868", "title": "", "text": "reasonable time for answering the notice personally and in writing and for furnishing affidavits in support of the answer; and (3) a notice of an adverse decision. 5 U.S.C. § 7512(b) (1976) (repealed 1978). . On the basis of Giordano v. Roudebush, 617 F.2d 511, 514-15 (8th Cir. 1980), plaintiffs monetary damage claims (e. g., for back pay) were transferred to the United States Court of Claims on November 28, 1980 (Filing No. 8). Only plaintiffs non-monetary claims (i. e., those relating to reinstatement) remain to be decided by this Court. . The provision cited by the defendant states: In any case filed in the United States Court of Claims or a United States court of appeals, the court shall review the record and hold unlawful and set aside any agency action, findings, or conclusions found to be— (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence; . . . . 5 U.S.C. § 7703(c) (Supp. III 1979). The above standards were codified as a part of the Civil Service Reform Act of 1978, Pub.L. 95-454, Title II, § 205, Oct. 13, 1978, 92 Stat. 1143. Under 5 U.S.C. § 7703(b)(1) (Supp. III 1979), also enacted in 1978, petitions for judicial review of decisions made by the Merit System Protection Board (formerly a part of the Civil Service Commission) may be filed either with the Court of Claims or the appropriate circuit court of appeals. Prior to the 1978 Act, employees who wished to challenge Civil Service Commission decisions generally filed their claims in the federal district courts. This led to a bothersome lack of uniformity in judicial review rulings. By limiting the number of courts handling these kinds of cases, Congress sought to remedy this lack of uniformity. See S.Rep. No. 95-969, 95th Cong., 2nd Sess. 63 (1978), reprinted in [1978] U.S.Code Cong. & Ad.News 2723, 2785. The 1978 Act, however, is not controlling in this case because plaintiffs claim was filed with the old" }, { "docid": "23705499", "title": "", "text": "from the filing of the initial charge with the [agency] or with the [EEOC] on appeal from a decision ... of such department, agency or unit ... an employee or applicant for employment, if aggrieved by the final disposition of his complaint, or by the failure to take final action on his complaint, may file a civil action as provided in section 2000e-5 of this title.... . The interdependence of the two statutes is rooted in their histories, which have been well documented elsewhere. The provision at issue in Irwin, § 717 of the EEOA, 42 U.S.C. § 2000c-16, was added to the civil rights laws in 1972 because Congress was persuaded that federal employees had no effective administrative and judicial remedies. Brown v. General Servs. Adm., 425 U.S. 820, 825-31, 96 S.Ct. 1961, 1964-67, 48 L.Ed.2d 402 (1976). It was then administered by the Civil Service Commission (\"CSC”), and contained the exclusive administrative remedy for federal employee discrimination claims. Brown, 425 U.S. at 820, 96 S.Ct. at 1961. In 1978, however, responding to continued discontent, Congress transferred jurisdiction over federal employee discrimination claims brought under the EEOA from the CSC to the EEOC. Congress also adopted the CSRA, abolished the CSC, and established the MSPB, as one of two agencies in its place. See generally Barbara L. Schlei & Paul Grossman, Employment Discrimination Law 1188-90 (2d ed. 1983) (collecting legislative history). Although the CSRA and EEOA contain a division of jurisdiction between the two agencies, there is also substantial interplay and overlap. 5 U.S.C. § 7702. Depending on status and type of claim, federal employees may have up to five options for pursuing a discrimination claim. 5 U.S.C. §§ 7701, 7702, 7121. See Lee M. Modjes-ka, Employment Discrimination Law § 2.7 (2d Ed. supp. 1991). The legislative history to § 7703(b)(2) seems to contain few clues indicating any separate purpose for the 30-day deadline, see, e.g., S.Rep. No. 969, 95th Cong., 2d Sess. 63-64, reprinted in 1978 U.S.C.C.A.N. 2723, 2785-86. And in 1991, when Congress increased from 30 to 90 days the time allotted for judicial review under 42" }, { "docid": "6969000", "title": "", "text": "no statutory right of appeal to the MSPB, and (b) probationary employees had no regulatory right of appeal to the MSPB for the handicap discrimination alleged by petitioner (review for that type of discrimination having been transferred to the Equal Employment Opportunity Commission). Piskadlo has petitioned this court for review under 28 U.S.C. §§ 2342(6) and 2349 and 5 U.S.C. § 7703. The MSPB was correct. When the Civil Service Reform Act of 1978, Pub.Law 95-454, 92 Stat. 1111, 5 U.S.C. §§ 7501 et seq., remodeled the civil service system and created the Merit Systems Protection Board, Congress excluded probationary employees from the definition of “employee” for most adverse action purposes. Section 7511(a)(1)(A) of Title 5 defines an “employee” to mean— an individual in the competitive service who is not serving a probationary or trial period under an initial appointment or who has completed 1 year of current continuous employment under other than a temporary appointment limited to 1 year or less (emphasis added)[.] This adverse action subchapter goes on to cover removal (except for certain situations not applicable to this case); suspension for more than 14 days; reduction in grade; reduction in pay; and a furlough of 30 days or less. § 7512. The next section (§ 7513) sets forth the standards and procedure for these adverse actions; it speaks in terms of an “employee” against whom such adverse action is taken. We are concerned here with a termination or removal for failure to perform adequately. It is plain that the definition of “employee” in § 7511(a)(1)(A), supra, is applicable to these adverse actions, including the removal in this very case, and that definition explicitly excludes probationary employees like petitioner. It is true that the definition of “employee” in 5 U.S.C. § 7511(a)(1), which is “for the purposes of this subchapter” [an adverse action subchapter], does not technically cover the later chapter of the Act on appeals to the MSPB, a chapter that has no definitions of its own. But § 7701(a) of the Appeals chapter merely gives the MSPB jurisdiction over an appeal “from any action which is" }, { "docid": "22557833", "title": "", "text": "basis for the action was discrimination ... From the foregoing, the majority concludes that all cases falling within section 7702 are “mixed” — defined to mean discrimination mixed with an appealable action. My interpretation of section 7702(a)(1) differs from that of the majority. Section 7702(a)(1)(A) merely states the obvious: the MSPB only has jurisdiction over appeals involving discrimination allegations where an action would otherwise be within the board’s jurisdiction. Without the language in section 7702(a)(1)(A), a literal reading of this section would permit the MSPB to hear discrimination cases brought for any reason, not just adverse actions, unacceptable performance, etc. Thus, section 7702(a)(1)(A) establishes that the board’s jurisdiction over discrimination claims should be read within the context of the rest of the Civil Service Reform Act of 1978, Pub.L. No. 95-454, 92 Stat. 1111. The majority, however, reads section 7702(a)(1) to cover all “mixed” cases — a task made simple by defining “mixed” cases as those cases described in section 7702. I would suggest a less self-serving definition of a “mixed” case — i.e., one in which there are discrimination and nondiscrimination (civil service) claims raised by the petitioner on appeal from an agency’s actions. Section 7702 simply requires that a discrimination claim involve an action within the board’s jurisdiction, not that civil service claims also be raised by the petitioner. Great emphasis is placed on the phrase in section 7702(a)(1)(B) “a basis for the action was discrimination .... ” (Emphasis added.) Similarly, the majority emphasizes that section 7702 employs the words “decision,” not “decisions,” and “action,” not “action and appeal.” The use of the above language in section 7702 does not, however, illuminate the issue before us. It is uncontested that Congress envisioned that the MSPB render a single decision in a “mixed” case, and this concern is found in the legislative history. See S.Rep. No. 969, 95th Cong., 2d Sess. 53, reprinted in 1978 U.S. Code Cong. & Ad.News 2723, 2775. There is no indication, however, that Congress contemplated the issue of severed judicial appeals, either through the language of the statute or in the legislative history. All" }, { "docid": "22602937", "title": "", "text": "ORDER BENNETT, Circuit Judge. Respondent has moved to dismiss this appeal from the Merit Systems Protection Board (MSPB) on the ground that it is barred by the statute of limitations, 5 U.S.C. § 7703(b)(1) (1982). The statute provides in relevant part: Notwithstanding any other provision of law, any petition for review must be filed within 30 days after the date the petitioner received notice of the final order or decision of the Board. The MSPB order denying petitioner’s request for review was received by him on October 11, 1983, and by his attorney on October 14, 1983. The petition for review by this Court was received by the Clerk on November 14, 1983. Under the statute, the date of receipt by petitioner’s counsel is irrelevant where petitioner himself actually received notice. Receipt of notice by petitioner on October 11 triggered the statute of limitations and his appeal is late on its face. The 30-day period for appeal is statutory, mandatory, jurisdictional, and bars the claim here. Ramos v. United States, 683 F.2d 396 (Ct.Cl.1982). Rule 26(c) of the Federal Rules of Appellate Procedure, which allows three extra days after “service of a paper” by mail, is not relevant to this case where the statute speaks of notice. Cf. FED.R.APP.P. 25(a). IT IS THEREFORE ORDERED that respondent’s motion to dismiss is granted." }, { "docid": "22557834", "title": "", "text": "in which there are discrimination and nondiscrimination (civil service) claims raised by the petitioner on appeal from an agency’s actions. Section 7702 simply requires that a discrimination claim involve an action within the board’s jurisdiction, not that civil service claims also be raised by the petitioner. Great emphasis is placed on the phrase in section 7702(a)(1)(B) “a basis for the action was discrimination .... ” (Emphasis added.) Similarly, the majority emphasizes that section 7702 employs the words “decision,” not “decisions,” and “action,” not “action and appeal.” The use of the above language in section 7702 does not, however, illuminate the issue before us. It is uncontested that Congress envisioned that the MSPB render a single decision in a “mixed” case, and this concern is found in the legislative history. See S.Rep. No. 969, 95th Cong., 2d Sess. 53, reprinted in 1978 U.S. Code Cong. & Ad.News 2723, 2775. There is no indication, however, that Congress contemplated the issue of severed judicial appeals, either through the language of the statute or in the legislative history. All the quoted language from the legislative history in the majority opinion is in reference to the issue of bifurcation on the administrative level, not on judicial appeal. Accordingly, I interpret section 7703(b)(1) as granting this court exclusive jurisdiction over all “mixed” appeals from the MSPB where the civil service claims may be or have been rationally severed from the discrimination claims. Ill Throughout the appeals process, discrimination claims are, in effect, “severed” from the nondiscrimination claims. Under section 7702(b)(3), the Equal Employment Opportunity Commission (EEOC) is empowered to review the MSPB’s interpretation of antidiscrimination laws. The MSPB, by the same token, reviews the EEOC’s decision as it relates to an interpretation of civil service law. Section 7702(c)(2). Thus, Congress evinced its concern that each administrative body be given due deference within areas of its expertise. See S.Rep. No. 969 at 57-60, reprinted in 1978 U.S.Code Cong. & Ad.News at 2779-82. Also, as a practical matter, an MSPB decision in a “mixed” case contains separate discussions of the discrim¡nation and civil service claims. Finally, the district" }, { "docid": "18746645", "title": "", "text": "alternative for summary judgment. The district court granted the defendant’s motion for summary judgment on February 5, 1985, and denied the plaintiff's motions. Pointing to the time limits prescribed in 5 U.S.C. § 7703(b) (1982), the court held that the racial discrimination claim was time-barred because Tolliver had not appealed the adverse ruling on that issue within 30 days after it became final on December 23, 1983. The court held, further, that because the racial discrimination claim had dropped out of the action before Tolliver filed in federal court, the Court of Appeals for the Federal Circuit had exclusive jurisdiction to hear the remaining issues. See 5 U.S.C. §§ 7702, 7703(b)(1) (1982). Under § 7703 of the Civil Service Reform Act of 1978 (“CSRA”), Pub.L. No. 95-454, 92 Stat. 1111 (codified in 5 U.S.C. (1982)), a federal employee who has been “adversely affected” by a final order of the MSPB may obtain federal court review by filing a petition within 30 days after the order becomes final. When the petition for review contains no discrimination claim, it must be filed in the Court of Appeals for the Federal Circuit. Section 7703(b)(1). But if the action involves racial discrimination prohibited by § 717 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16 (1982), the district court has jurisdiction to hear the entire claim, which is to be filed in accordance with the requirements of § 717(c) of the Civil Rights Act. Section 7703(b)(2). These cases are termed “mixed cases.” The CSRA thus incorporates elements of the Civil Rights Act in those cases alleging racial discrimination. We must look at both sets of statutes and regulations in order to determine whether the district court was correct in finding that Tolliver’s discrimination claim had dropped out of the case and thus that the district court did not have jurisdiction. In mixed cases, as Tolliver’s was at its inception, the 30-day appeal period begins to run once “the individual filing the case received notice of the judicially reviewable action....” Section 7703(b)(2). We must decide when this MSPB case became “judicially reviewable.” The" }, { "docid": "6968999", "title": "", "text": "DAVIS, Judge. On August 6, 1979, petitioner Edward Piskadlo was first employed by the Veterans Administration as a claims adjudicator-trainee in the competitive service. His one-year probationary period was to end early in August 1980. On July 30, 1980, the Veterans’ Administration terminated his probationary employment (effective August 4,1980) “as a result of your apparent inabil ity to perform the work at a rate which approximates the productivity standards established for adjudicators, and your inability to reduce your percent of error to an acceptable rate for an adjudicator/trainee.” Piskadlo filed a timely appeal to the Boston Field Office of the Merit Systems Protection Board (MSPB). His claim was that the agency had improperly discriminated against him because of his physical handicap. The Field Office dismissed the appeal as beyond the jurisdiction of the MSPB. In his petition for review by the Board itself, Piskadlo also asserted that his agency had employed improper procedures with respect to his termination. The Board denied the petition for review on the grounds that (a) probationary employees like Piskadlo had no statutory right of appeal to the MSPB, and (b) probationary employees had no regulatory right of appeal to the MSPB for the handicap discrimination alleged by petitioner (review for that type of discrimination having been transferred to the Equal Employment Opportunity Commission). Piskadlo has petitioned this court for review under 28 U.S.C. §§ 2342(6) and 2349 and 5 U.S.C. § 7703. The MSPB was correct. When the Civil Service Reform Act of 1978, Pub.Law 95-454, 92 Stat. 1111, 5 U.S.C. §§ 7501 et seq., remodeled the civil service system and created the Merit Systems Protection Board, Congress excluded probationary employees from the definition of “employee” for most adverse action purposes. Section 7511(a)(1)(A) of Title 5 defines an “employee” to mean— an individual in the competitive service who is not serving a probationary or trial period under an initial appointment or who has completed 1 year of current continuous employment under other than a temporary appointment limited to 1 year or less (emphasis added)[.] This adverse action subchapter goes on to cover removal (except for" }, { "docid": "21905137", "title": "", "text": "basis on which to conclude that the [petitioner] was discriminated against because of his race.” Dec.No. DC075209222, at 3, Addendum to Petitioner’s Br. The MSPB declined to review this initial decision. Hayes thereafter bifurcated his case, filing a petition with the Equal Employment Opportunity Commission (EEOC) seeking consideration of the discrimination claim and, at the same time, filing a petition for review in this court on the nondiscrimination claim of the insubstantiality of the evidence. Respondent GPO filed a motion to dismiss for lack of jurisdiction. II The Civil Service Reform Act of 1978 (CSRA), Pub.L.No.95-454, 92 Stat. 1111 (codified in 5 U.S.C. (Supp. Ill 1979)), provides that final decisions of the MSPB are generally reviewable in the courts of appeals or the Court of Claims. 5 U.S.C. § 7703(b)(1) (Supp. Ill 1979). In such cases, review is on the administrative record. The court may set aside agency action only if arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, procedurally infirm, or unsupported by substantial evidence. Id. § 7703(c). The Act creates an exception, however, for “[c]ases of discrimination.” Id. § 7703(b)(2). Such cases include those in which an employee “alleges that a basis for the action was discrimination prohibited by . . . section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16) ....” Id. § 7702(a)(1)(B). They are to “be filed under section 717(c) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16(c)) ... as applicable.... ,” id. § 7703(b)(2), and are reviewable de novo by the district court. Id. § 7703(c). See Chandler v. Roudebush, 425 U.S. 840, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976). Read together with the rest of the Act, these sections provide two different types of procedures for employees contesting agency action. If an employee does not allege that “a basis” of the agency action was discrimination, he may appeal directly from the MSPB to the courts of appeals or Court of Claims. If, however, discrimination is alleged, the employee may either immediately file suit in a district court or follow an administrative procedure. 5" }, { "docid": "21905136", "title": "", "text": "McGOWAN, Senior Circuit Judge: In this action, Lloyd Hayes, a former employee of the U.S. Government Printing Office (GPO), seeks review of a decision of the Merit Systems Protection Board (MSPB) upholding his removal from government service. Because we hold that we lack jurisdiction to review this determination, we dismiss the petition for review. I By letter dated December 10, 1982, GPO, then the employer of petitioner Hayes, gave him advance notice of its intent to remove him from its employ for (1) fighting or creating a disturbance; (2) striking or attempting to strike a fellow employee; and (3) recurrent tardiness. Exh. 1, Addendum to Petitioner’s Br. Petitioner appealed his removal to the MSPB, as was his right, alleging that the removal was invalid because it was (a) not justified by sufficient evidence of wrongdoing and (b) the result of discrimination based on race. The presiding official who conducted an initial hearing on petitioner’s appeal affirmed the agency’s action. He found it to be supported by a preponderance of the evidence,.and he further found “no basis on which to conclude that the [petitioner] was discriminated against because of his race.” Dec.No. DC075209222, at 3, Addendum to Petitioner’s Br. The MSPB declined to review this initial decision. Hayes thereafter bifurcated his case, filing a petition with the Equal Employment Opportunity Commission (EEOC) seeking consideration of the discrimination claim and, at the same time, filing a petition for review in this court on the nondiscrimination claim of the insubstantiality of the evidence. Respondent GPO filed a motion to dismiss for lack of jurisdiction. II The Civil Service Reform Act of 1978 (CSRA), Pub.L.No.95-454, 92 Stat. 1111 (codified in 5 U.S.C. (Supp. Ill 1979)), provides that final decisions of the MSPB are generally reviewable in the courts of appeals or the Court of Claims. 5 U.S.C. § 7703(b)(1) (Supp. Ill 1979). In such cases, review is on the administrative record. The court may set aside agency action only if arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, procedurally infirm, or unsupported by substantial evidence. Id. § 7703(c). The" }, { "docid": "4507182", "title": "", "text": "Petitioner, in this civilian pay case, seeks review under the Civil Service Reform Act of 1978 (\"Act”), 5 U.S.C. § 7703 (Supp. Ill 1979), of an adverse decision of the Merit Systems Protection Board (\"Board”) upholding his discharge by the United States General Services Administration. The government has moved to dismiss the petition as untimely. We agree with the government and dismiss the petition. The Act provides: Notwithstanding any other provision of law, any petition for review must be filed within 30 days after the date the petitioner received notice of the final order or decision of the Board. [5 U.S.C. § 7703(b)(1)] Plaintiff received notice of the adverse Board decision on September 30, 1980. On Tuesday, October 28, two days before the 30-day period expired, petitioner mailed his petition by certified mail from California. The petition was received and filed by us on November 3, 1980, four days after the 30-day period expired. In Section 7703(b)(1) Congress not only provided an unusually short time within which to seek review of Board decisions, but made it clear that compliance with that requirement is mandatory. It provided that any petition for review \"must” be filed within 30 days after receipt of notice of the Board decision and that this requirement must be followed \"[notwithstanding any other provision of law.” By waiting until two days before the 30-day period expired to mail his petition, the petitioner assumed the risk that the petition would not be filed on time. The petition was not filed until the 34th day, and under the Act it was untimely. Coleman v. Department of the Navy, 227 Ct. Cl. 536 (1981). In so holding, we express no opinion on whether the result would be different if the petition to review had been properly mailed well in advance of the due date (see Rule 21(b)(iii)) or if the late filing resulted from a cause other than delay in delivery of the mail. The defendant’s motion to dismiss is granted and the petition is dismissed." }, { "docid": "21921066", "title": "", "text": "U.S.C. (Supp. Ill 1979)), affected the appeal rights of nonappropriated fund personnel. Under pre-CSRA law, such personnel were defined as non-“employees” for the purpose of laws, other than specified exceptions, that were “administered by the Civil Service Commission.” 5 U.S.C. § 2105(c) (1976). At that time, the laws “adminis tered” by the Civil Service Commission (“CSC”) included the provisions governing “adverse actions” as well as those concerning appeals taken from such actions. No argument could be made, therefore, that nonappropriated fund personnel had a right to appeal job removals to the CSC. The CSRA amended section 2105(c), however, replacing “administered by the Civil Service Commission” with “administered by the Office of Personnel Management.” Because this amendment is a central component of all petitioners’ arguments, we should relate some essential background to it before describing those arguments. The amendment, which appears in the Act as a “technical and conforming” amendment, Pub.L.No.95-454, § 906(a)(2), 92 Stat. 1224, reflects the Act’s abolition of the CSC and its replacement of that body with two new agencies, the MSPB and the Office of Personnel Management (“OPM”). A central purpose of this bifurcation was “to insure that those who are responsible for administering the civil service system will not have the primary responsibility of determining whether that system is free from abuse.” S.Rep.No.95-969, 95th Cong., 2d Sess. 24 (1978), reprinted in II House Committee on Post Office and Civil Service, 96th Cong., 1st Sess., Legislative History of the Civil Service Reform Act of 1978, at 1461, 1488 (1979) [hereinafter cited as Legislative History], U.S.Code Cong. & Admin. News 1978, p. 2723. In accord with this aim, the Act transferred to the OPM the CSC’s responsibility as the central personnel administrator of the civil service system-. 5 U.S.C. § 1103 (Supp. III 1979); H.R.Rep.No.95-1403, 95th Cong., 2d Sess. 4, 6 (1978), reprinted in I Legislative History at 636, 641, 643; S.Rep.No.95-969, supra, at 24, reprinted in II Legislative History at 1488, U.S.Code Cong. & Admin. News 1978, p. 2746. The MSPB inherited the appellate authority that had been vested in the CSC. 5 U.S.C. § 1205(a)(1) (Supp." } ]

[ { "docid": "22093240", "title": "", "text": "satisfied the common law requirement that the prosecution end in the plaintiffs favor. See id. at 579. Similarly, in Montgomery v. DeSimone, 159 F.3d 120 (3d Cir.1998), we addressed only the absence of probable cause element of malicious prosecution claims. Thus, this case is our first occasion to consider Albñght’s holding that section 1983 malicious prosecution claims must show more than a substantive due process violation. Albright involved a baseless drug charge. See 510 U.S. at 268, 114 S.Ct. 810. After learning that a warrant had issued for his arrest, Albright surrendered to the authorities and was released after posting a bond. See id. An Illinois court later dismissed the charges against him for failing to state an offense under Illinois law. See Albright, 510 U.S. at 269, 114 S.Ct. at 810. Albright then sued the police officer who had obtained the arrest warrant under section 1983, alleging that the officer had deprived him of his Fourteenth Amendment right to be free from prosecution except upon probable cause. See id. The Court of Appeals for the Seventh Circuit dismissed the suit on the ground that Albright had failed to show incarceration, loss of employment, or some other “palpable consequence” caused by the prosecution. Albright, 510 U.S. 269-70, 114 S.Ct. at 810-11 (citations omitted). Writing for a four-member plurality, Chief Justice Behnquist affirmed the dismissal and held “that substantive due process, with its ‘scarce and open-ended’ ‘guideposts’ [could] afford [Albright] no relief.” Albright, 510 U.S. at 275, 114 S.Ct. at 814 (citations omitted). In reaching this conclusion, Chief Jus tice Rehnquist first noted that Albright claimed neither that he was denied procedural due process guaranteed by the Fourteenth Amendment nor that he suffered a violation of his Fourth Amendment rights. Rather, Albright’s claim was limited to the narrow issue of his substantive due process right to be free from a prosecution without probable cause. See Albright, 510 U.S. at 271, 114 S.Ct. at 812. Upholding the district court’s dismissal, Chief Justice Rehnquist announced “[w]here a particular amendment ‘provides an explicit textual source of constitutional protection’ against a particular sort of government" } ]

[ { "docid": "23333104", "title": "", "text": "the Fourth Amendment rather than on the Fourteenth Amendment. First, while Halsey pled both Fourth and Fourteenth Amendment malicious prosecution counts, at some point in the proceeding — certainly by the time of the appeal — he abandoned the Fourteenth Amendment iteration of the malicious prosecution claim, thus obviating the need for us to decide its viability. Compare Torres v. McLaughlin, 163 F.3d 169, 173 (3d Cir.1998) (reaffirming that section 1983 malicious prosecution claims cannot be based on substantive due process but declining to decide whether they could be grounded in procedural due process), with Gallo v. City of Philadelphia, 161 F.3d 217, 222 (3d Cir.1998) (suggesting that Supreme Court case law leaves only the Fourth Amendment as potential source of malicious prosecution claims). In addition, neither Halsey nor appellees point to other constitutional provisions cover ing malicious prosecutions. See, e.g., Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 792-93 (3d Cir.2000) (analyzing malicious prosecution claims predicated on the First and Sixth Amendments). Second, though appellees mention in passing and in general terms other causes of action that potentially could subsume evidence-fabrication claims — namely, false arrests (Pfeiffer's br. at 32; Lynch’s br. at 20) and claims pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (Pfeiffer’s br. at 34) — for purposes of this case, they focus exclusively on the Fourth Amendment malicious prosecution theory. Furthermore, the Fourth Amendment is the only constitutional predicate that the District Court found covered Halsey’s evidence-fabrication count. Halsey, 2013 WL 646200, at *8-9. In these circumstances, we, too, will focus on the Fourth Amendment when discussing malicious prosecutions claims. We add, however, that even if a fabrication claim could be tied to a claim under a constitutional provision other than the Fourth Amendment, we would see no reason why the fabrication claim could not stand alone. . The Fourteenth Amendment guarantees, in relevant part: No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or" }, { "docid": "7296242", "title": "", "text": "Amendment substantive due process right to be free from malicious prosecution. The Supreme Court has, however, not foreclosed the possibility that a malicious prosecution cause of action may be actionable under the Fourth Amendment in a § 1983 claim”) (citations omitted); Torres, 966 F.Supp. at 1361 n.7 (finding that the constitutional tort of malicious prosecution survives Albright but that a deprivation of liberty cognizable under the Fourth Amendment, in addition to the elements of the common law tort, is now required). Another court has found that § 1983 malicious prosecution claims still exist without reaching the question of whether Albright’s Fourth Amendment language controls. In Miller v. City of Philadelphia, 954 F.Supp. 1056, 1066 (E.D.Pa.1997), the court held that a social worker did not have qualified immunity from a § 1983 malicious prosecution claim arising out of the initiation of child custody proceed ings because “without clear direction from the Third Circuit concerning the impact of Albright, malicious prosecution remains a valid claim under § 1983.” The court in Miller disagreed with the holding in Brooks, finding that: [I]n light of the Third Circuit’s explicit holding in Lee, the implications of Albright are not apparent enough for this court to conclude that malicious prosecution was not a clearly established constitutional violation under § 1983 during the eighteen months prior to Hilfirty. Id. See also Ferraira v. Mobil Oil Corp., 1994 WL 470280 at *3-*4 (E.D.Pa. Aug.19, 1994) (analyzing § 1983 malicious prosecution claim under Third Circuit’s pre-Albright standards), aff'd, 68 F.3d 456, (3d Cir.1995). Yet another court held that “Albright was limited to the specific facts of that case” and declined to construe Albright as “determining that persons subject to excessive force after [an] arrest should bring claims under the Fourth and not the Fourteenth Amendment.” Bieros v. Nicola, 860 F.Supp. 226, 231 (E.D.Pa.1994). Prior to Albright it was clearly established in this circuit that maliciously prosecuting an innocent individual constituted a violation of that person’s constitutional rights. Albright modified this principle in two respects: i) the source of the constitutional right is the Fourth Amendment rather than substantive due" }, { "docid": "9226127", "title": "", "text": "Malicious Prosecution The individual defendants argue that any claim for malicious prosecution may proceed only under the Fourth Amendment, not under the Fourteenth Amendment. As an initial matter, there is no substantive due process right to be free from malicious prosecution. See Albright v. Oliver , 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (\"[I]t is the Fourth Amendment, and not substantive due process, under which [a malicious prosecution] claim must be judged.\"). The parties dispute whether the procedural due process clause protects against malicious prosecution. This is a close question which the Court need not resolve at this time. Instead, the Court concludes that any procedural due process right is not (and was not at the relevant time) clearly established, meaning that the officers are entitled to qualified immunity in this case. A. Does the procedural due process clause protect against malicious prosecution? The parties' briefing on this question has focused on three areas: (1) case law in the Third Circuit, (2) this Court's opinion last year in Wright v. City of Philadelphia , and (3) theoretical underpinnings for a due process right against malicious prosecution. First , case law in this Circuit may be described as inconsistent. As our Court of Appeals acknowledged in 2014: [W]hile [the plaintiff] pled both Fourth and Fourteenth Amendment malicious prosecution counts, at some point in the proceeding ... he abandoned the Fourteenth Amendment iteration of the malicious prosecution claim, thus obviating the need for us to decide its viability . Compare Torres v. McLaughlin , 163 F.3d 169, 173 (3d Cir. 1998) (reaffirming that § 1983 malicious prosecution claims cannot be based on substantive due process but declining to decide whether they could be grounded in procedural due process ), with Gallo v. City of Philadelphia , 161 F.3d 217, 222 (3d Cir. 1998) (suggesting that Supreme Court case law leaves only the Fourth Amendment as potential source of malicious prosecution claims). Halsey , 750 F.3d at 290 n.14 (emphasis added). In other words, the Third Circuit Court of Appeals has not actually decided whether such a procedural due" }, { "docid": "7296243", "title": "", "text": "Brooks, finding that: [I]n light of the Third Circuit’s explicit holding in Lee, the implications of Albright are not apparent enough for this court to conclude that malicious prosecution was not a clearly established constitutional violation under § 1983 during the eighteen months prior to Hilfirty. Id. See also Ferraira v. Mobil Oil Corp., 1994 WL 470280 at *3-*4 (E.D.Pa. Aug.19, 1994) (analyzing § 1983 malicious prosecution claim under Third Circuit’s pre-Albright standards), aff'd, 68 F.3d 456, (3d Cir.1995). Yet another court held that “Albright was limited to the specific facts of that case” and declined to construe Albright as “determining that persons subject to excessive force after [an] arrest should bring claims under the Fourth and not the Fourteenth Amendment.” Bieros v. Nicola, 860 F.Supp. 226, 231 (E.D.Pa.1994). Prior to Albright it was clearly established in this circuit that maliciously prosecuting an innocent individual constituted a violation of that person’s constitutional rights. Albright modified this principle in two respects: i) the source of the constitutional right is the Fourth Amendment rather than substantive due process under the Fourteenth Amendment, and ii) to prevail a plaintiff must establish a “seizure” in addition to the common law elements of a malicious prosecution claim. This Court has stated that it is the “general right” which must be clearly established. In a sex discrimination case we have stated that “Although there may not have been any precedents with precisely analogous facts ... a ‘reasonable official would understand that what he is doing violates [plaintiffs] rights.’ ” Andrews v. City of Philadelphia, 895 F.2d 1469, 1479 (3d Cir.1990) (citation omitted). Similarly, a reasonable police officer both before and after Al-bright would understand that maliciously prosecuting an innocent person, thereby causing his imprisonment, violates a constitutional right. In light of the foregoing the district court correctly held that after Albright was decided in January 1994, malicious prosecution claims under § 1983 were clearly established federal actions in this circuit, albeit under the Fourth Amendment. This conclusion is supported by a number of factors, including this circuit’s “expansive” pre-Albright § 1983 malicious prosecution jurisprudence as stated" }, { "docid": "2993967", "title": "", "text": "at p. 13) . In a nutshell, Pomykacz has certified: \"I never stalked Mayor Fox or Ferentz. I never engaged in any conduct that would reasonably cause them to be in fear. I never stealthily followed them. I did not drive by their house on Q Avenue with the frequency they claim. I did not take more than the three pictures I have described. I never intentionally drove by defendant Ferentz's father’s house in Wildwood Crest. I never trespassed on private property to make observations or take photos. I did not intentionally drive by [Ferentz's] patrol car repeatedly.” (Pomy-kacz Cert, at ¶ 20) .Pomykacz asserts that she was standing in the street at the time she took the photograph. Defendants assert she was standing in the building’s parking lot. . The existence of probable cause defeats all three claims. Herman v. City of Millville, 66 Fed.Appx. 363, 365 n. 3 (3d Cir.2003) (“The Section 1983 claim must fail if there was probable cause to file charges, for then there was no Fourth Amendment violation.”); Wildoner v. Bor. of Ramsey, 162 N.J. 375, 744 A.2d 1146 (2000) (\"Probable cause is an absolute defense to Plaintiffs false arrest, false imprisonment, and malicious prosecution claims.”). . The record is unclear what, if anything, Mayor Fox told the judge. Accordingly, summary judgment will be denied for this reason as well. . Pomykacz apparently grounds her § 1983 malicious prosecution claim in the Fourth Amendment as well as the procedural and substantive Due Process Clauses of the Fourteenth Amendment. (Compl-¶ 37) While the Supreme Court has made clear that the substantive Due Process Clause cannot support a § 1983 malicious prosecution claim, see Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994), current jurisprudence allows for such a claim to proceed \" 'based on the Fourth Amendment, the procedural due process clause or other explicit text of the Constitution.’ ” Gordon v. City of Philadelphia, 40 Fed.Appx. 729, 730 (3d Cir.2002)(quoting Torres v. McLaughlin, 163 F.3d 169 (3d Cir.1998)). Accordingly, summary judgment will be granted with respect to the federal malicious" }, { "docid": "9226131", "title": "", "text": "is governed by the Fourth Amendment, but at some point after arrest, and certainly by the time of trial, constitutional analysis shifts to the Due Process Clause.\"). This temporal distinction suggests that a procedural due process right against malicious prosecution may exist. However, this was, and indeed remains, an unsettled question, meaning that Mr. Thomas fails to overcome the defense of qualified immunity, discussed next. B. Qualified Immunity In order to hold a government official liable under § 1983, the right claimed by the plaintiff must have been clearly established at the time of the alleged violation. See, e.g. , Ashcroft v. Al-Kidd , 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) ; Saucier v. Katz , 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). The procedural due process right against malicious prosecution is not clearly established. The Supreme Court has not yet articulated such a right. And the Third Circuit Court of Appeals stopped short of deciding the right's \"viability\" in 2014, let alone in the early 1990s when Mr. Thomas interacted with the defendants. See Halsey , 750 F.3d at 290 n.14 ; see also Mondragon , 519 F.3d at 1083 (\"After the institution of legal process, any remaining constitutional claim is analogous to a malicious prosecution claim. The Supreme Court has not yet explicitly decided whether such a claim exists in these circumstances under the Fourth Amendment or the procedural component of the Due Process Clause.\"). In response, Mr. Thomas shifts his focus from the right to the officers' conduct . As he puts it, the \"exact constitutional provision\" that has been violated is \"irrelevant,\" so long as some constitutional provision is clearly violated. The officers' conduct as alleged in this case was clearly unconstitutional: it violated Mr. Thomas's clearly established Fourth Amendment right against malicious prosecution. But the conduct was not clearly unconstitutional under the Fourteenth Amendment. Thus, the question becomes: what is a Court to do when certain conduct is clearly unconstitutional, but due to a different constitutional source? Is there still qualified immunity as to the unsettled constitutional" }, { "docid": "7296241", "title": "", "text": "constitutional violation and consequently the state defendants there were entitled to qualified immunity for claims arising out of incidents occurring during that period. See also Trueman v. Lekberg, No. 97-1018, 1998 WL 181816 (E.D.Pa. April 16, 1998) (following Brooks to find existence of malicious prosecution action was unclear on May 27, 1994, the date of Trueman’s arrest); Smith v. Holtz, 856 F.Supp. 227, 236 (M.D.Pa.1994) (implying that the existence of § 1983 malicious prosecution claims under the Fourth Amendment was an unresolved issue), aff'd, 87 F.3d 108 (3d Cir.1996), cert. denied, sub nom. Wambaugh v. Smith, — U.S.-, 117 S.Ct. 611, 136 L.Ed.2d 536 (1996). On the other hand, other district courts in this circuit, including the district court below, have found that malicious prosecution remains a clearly established constitutional violation after Albright. Some courts have concluded that such actions must now state a violation of the Fourth Amendment. See, e.g., Gallo v. City of Philadelphia, 975 F.Supp. 723, 726 (E.D.Pa.1997) (viewing plaintiffs claim as asserting a Fourth Amendment violation because “[t]here is no Fourteenth Amendment substantive due process right to be free from malicious prosecution. The Supreme Court has, however, not foreclosed the possibility that a malicious prosecution cause of action may be actionable under the Fourth Amendment in a § 1983 claim”) (citations omitted); Torres, 966 F.Supp. at 1361 n.7 (finding that the constitutional tort of malicious prosecution survives Albright but that a deprivation of liberty cognizable under the Fourth Amendment, in addition to the elements of the common law tort, is now required). Another court has found that § 1983 malicious prosecution claims still exist without reaching the question of whether Albright’s Fourth Amendment language controls. In Miller v. City of Philadelphia, 954 F.Supp. 1056, 1066 (E.D.Pa.1997), the court held that a social worker did not have qualified immunity from a § 1983 malicious prosecution claim arising out of the initiation of child custody proceed ings because “without clear direction from the Third Circuit concerning the impact of Albright, malicious prosecution remains a valid claim under § 1983.” The court in Miller disagreed with the holding in" }, { "docid": "3450342", "title": "", "text": "law tort of malicious prosecution — specifically, the requirement that the prior proceeding terminate favorably to the plaintiff”.). The Seventh Circuit formerly also interpreted Albright to require a § .1983 malicious prosecution claim to be located in the Fourth Amendment. Washington v. Summerville, 127 F.3d 552, 558 (7th Cir.1997) (\"Albright ... instructs that the only constitutional amendment that is implicated by a malicious prosecution claim is the Fourth Amendment.”), cert. denied, 523 U.S. 1073, 118 S.Ct. 1515, 140 L.Ed.2d 668 (1998). As noted, it abandoned that approach recently, holding: the concurring opinion of Justices Kennedy and Thomas in Albright controls; consequently, where state law provides a malicious prosecution damages remedy, there is no such constitutional damages remedy. Newsome, 256 F.3d 747. By contrast, the Third Circuit reads Albright \"for the broader proposition that a section 1983 claim may be based on a constitutional provision other than the Fourth Amendment”. Torres v. McLaughlin, 163 F.3d 169, 172 (3d Cir.1998), cert. denied, 528 U.S. 1079, 120 S.Ct. 797, 145 L.Ed.2d 672 (2000). The Sixth Circuit interprets Albright differently yet: Albright holds only that in cases in which a Fourth Amendment violation has occurred, a § 1983 claim cannot be brought under notions of substantive due process. Al-bright appears to acknowledge that in cases of egregious behavior that do not include a seizure, a plaintiff may have a § 1983 malicious prosecution claim supported by substantive due process rights. Frantz v. Village of Bradford, 245 F.3d 869, 877 (6th Cir.2001). As noted, in a case involving a claim of malicious prosecution in violation of First Amendment rights, we stated: \"Whether the Constitution comprehends any such claim, is far from clear”. Johnson, 18 F.3d at 320. However, whether a § 1983 malicious prosecution claim can have its roots anywhere other than in the Fourth Amendment is not at issue in this case.. Although Castellano complained of First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment violations, summary judgment was awarded Fragozo and Sanchez on all but the First and Fourth Amendment claims. On appeal, Castellano has waived his First Amendment claim, stating that his malicious" }, { "docid": "9226130", "title": "", "text": "prosecution, which requires a plaintiff to demonstrate the initiation and maintenance of a criminal prosecution without probable cause....Accordingly, the claims asserted ... did not accrue until Mr. Wright's criminal proceeding terminated in his favor upon his August 2016 acquittal. The entirety of Mr. Wright's Complaint, filed on September 20, 2016, was timely. Id. at 331-32. Thus, the actual discussion and ruling in Wright does not resolve the question whether the procedural due process clause supports a claim for malicious prosecution. Third , Mr. Thomas's briefing has explained why a procedural due process right against malicious prosecution makes theoretical sense. The fundamental distinction between the Fourth and Fourteenth Amendments is temporal: The Fourth Amendment's \"protection against unlawful seizures extends only until trial.\" Halsey , 750 F.3d at 291. Once trial starts, however, the Fourteenth Amendment kicks in: \"The guarantee of due process of law ... protects defendants during an entire criminal proceeding through and after trial .\" Id. (emphasis added); see also Mondragon v. Thompson , 519 F.3d 1078, 1082 (10th Cir. 2008) (\"The initial seizure is governed by the Fourth Amendment, but at some point after arrest, and certainly by the time of trial, constitutional analysis shifts to the Due Process Clause.\"). This temporal distinction suggests that a procedural due process right against malicious prosecution may exist. However, this was, and indeed remains, an unsettled question, meaning that Mr. Thomas fails to overcome the defense of qualified immunity, discussed next. B. Qualified Immunity In order to hold a government official liable under § 1983, the right claimed by the plaintiff must have been clearly established at the time of the alleged violation. See, e.g. , Ashcroft v. Al-Kidd , 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) ; Saucier v. Katz , 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). The procedural due process right against malicious prosecution is not clearly established. The Supreme Court has not yet articulated such a right. And the Third Circuit Court of Appeals stopped short of deciding the right's \"viability\" in 2014, let alone in the early 1990s" }, { "docid": "16595448", "title": "", "text": "exercise of their protected right was a substantial or motivating factor in Defendants’s actions. See: Merkle v. Upper Dublin School District, 211 F.3d 782, 793 (3d Cir.2000); Harrington v. Harris, 118 F.3d 359, 364 (5th Cir.1997); Bernheim v. Litt, 79 F.3d 318, 324 (2d Cir. 1996); Keenan v. City of Philadelphia, 983 F.2d 459, 466 (3d Cir.1992). The Fourth Amendment, in turn, protects against unreasonable searches and seizures while the Fourteenth dictates that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction of the equal protection of the laws.” In determining whether there exists a substantive constitutional right to be free from malicious or criminal prosecution without probable cause, the U.S. Supreme Court has refused to recognize such a right under the Due Process Clause of the Fourteenth Amendment, although it has intimated that relief could be obtained under the Fourth. Albright v. Oliver, 510 U.S. 266, 268, 114 S.Ct. 807, 810, 127 L.Ed.2d 114 (1994). Moreover, to state such a malicious prosecution claim under the Fourth Amendment, the plaintiff must show some deprivation of liberty consistent with the concept of seizure and that the allegedly malicious proceedings terminated in his favor. Donahue v. Gavin, 280 F.3d 371 (3d Cir.2002); Torres v. McLaughlin, 163 F.3d 169 (3d Cir.1998); Gallo v. City of Philadelphia, 161 F.3d 217, 221 (3d Cir.1998). See Also: Heck v. Humphrey, 512 U.S. 477, 484, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). In light of the very liberal notice pleading standard adhered to in the federal courts, we find that plaintiffs’ averments adequately plead a First Amendment cause of action for police officer Kissel’s purported infringement of their right to address and defend the parking violations against them and a Fourth Amendment claim for Mr. Douris’ alleged arrest by Defendants Kissel and Doucette. Given that the plaintiffs’ complaint is devoid of any averments as to any seizure by the parking" }, { "docid": "20501506", "title": "", "text": "but wrongful process, he has a claim under the procedural component of the Fourteenth Amendment’s Due Process Clause analogous to a tort claim for malicious prosecution.” 519 F.3d at 1082. More recently, the Tenth Circuit has explained that the Fourteenth Amendment claim analogous to a malicious prosecution claim would not be available if an adequate state remedy exists, but a plaintiff may have the option of bringing a Fourth Amendment claim using a similar malicious prosecution theory. See Myers v. Koopman, 738 F.3d 1190, 1192 (10th Cir.2013). In Myers v. Koopman, the plaintiff alleged that a detective fabricated facts to create the illusion of probable cause and, as a result, the plaintiff spent three days in custody. See 738 F.3d at 1192. The plaintiff brought a claim under § 1983 for malicious prosecution, alleging that the detective violated his Fourth and Fourteenth Amendment rights. See 738 F.3d at 1192. The plaintiff brought the Fourteenth Amendment malicious prosecution claim based on the detective’s conduct in “conjurfing] up facts to create the illusion of probable cause for an arrest warrant and subsequent prosecution.” 738 F.3d at 1193. The Tenth Circuit explained that “[t]he Fourteenth Amendment protects individuals against deprivations of liberty without due process of law. If a state actor’s harmful conduct is unauthorized and thus could not be anticipated pre-deprivation, then an adequate post-deprivation remedy — such as a state tort claim — will satisfy due process requirements.” 738 F.3d at 1193 (citations omitted). Because a malicious prosecution claim under Colorado law was available, the Tenth Circuit affirmed the district court’s dismissal: “The existence of the state remedy flattens the Fourteenth Amendment peg on which [the plaintiff] now tries to hang his § 1983 malicious-prosecution claim.” 738 F.3d at 1193. The plaintiff also brought a malicious prosecution claim under the Fourth Amendment; the district court analogized the claim to a false imprisonment claim, but the Tenth Circuit said that the plaintiff was correct in casting his claim as malicious prosecution, “because he was seized after the institution of legal process.” 738 F.3d at 1194. The Tenth Circuit described the difference between" }, { "docid": "9226129", "title": "", "text": "process right exists. Second , Wright v. City of Philadelphia concluded that a plaintiff's Fourteenth Amendment claims were \"most analogous to malicious prosecution\" because they \"involved the trial process itself.\" 229 F.Supp.3d 322, 331 (E.D. Pa. 2017). At first glance, this seems to endorse the existence of a malicious prosecution claim based on the Fourteenth Amendment. But the Court's Wright decision actually was limited to a decision of whether the claims were closer to false imprisonment or to malicious prosecution for the purpose of determining the statute of limitations : Pursuant to the paradigm set up in Wallace [v. Kato , 549 U.S. 384, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007) ], a § 1983 plaintiff's claims based on wrongful detention are either analogous to the tort of false imprisonment (if the claims are premised on wrongful detention without legal process) or the tort of malicious prosecution (if the claims are premised on wrongful detention pursuant to the wrongful use of legal process).... Here, the claims ... are most analogous to the tort of malicious prosecution, which requires a plaintiff to demonstrate the initiation and maintenance of a criminal prosecution without probable cause....Accordingly, the claims asserted ... did not accrue until Mr. Wright's criminal proceeding terminated in his favor upon his August 2016 acquittal. The entirety of Mr. Wright's Complaint, filed on September 20, 2016, was timely. Id. at 331-32. Thus, the actual discussion and ruling in Wright does not resolve the question whether the procedural due process clause supports a claim for malicious prosecution. Third , Mr. Thomas's briefing has explained why a procedural due process right against malicious prosecution makes theoretical sense. The fundamental distinction between the Fourth and Fourteenth Amendments is temporal: The Fourth Amendment's \"protection against unlawful seizures extends only until trial.\" Halsey , 750 F.3d at 291. Once trial starts, however, the Fourteenth Amendment kicks in: \"The guarantee of due process of law ... protects defendants during an entire criminal proceeding through and after trial .\" Id. (emphasis added); see also Mondragon v. Thompson , 519 F.3d 1078, 1082 (10th Cir. 2008) (\"The initial seizure" }, { "docid": "10545642", "title": "", "text": "Fourteenth Amendments. While “malicious prosecution standing alone does not implicate federally protected rights,” Torres v. Superintendent of Police, 893 F.2d 404, 409 (1st Cir.1990), under certain circumstances a malicious prosecution may constitute a violation of the Due Process Clause of the Fourteenth Amendment or of the Fourth Amendment. See Albright v. Oliver, 510 U.S. 266, 274, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (rejecting substantive due process claim based on malicious prosecution, but leaving open possibility of Fourth Amendment claim); Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 41 (1st Cir.1994) (deeming procedural due process claim based on malicious prosecution viable under limited circumstances). The Court now examines these possibilities as they apply to the present case. A. Due Process Prior to the Supreme Court’s decision in Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994), courts were divided over the extent to which a malicious prosecution claim was actionable under Section 1983. See Albright, 510 U.S. at 271 n. 4, 510 U.S. 266. la Albright, the Court eliminated much of the controversy by announcing that substantive due process did “not furnish the constitutional peg on which to hang” the tort of malicious prosecution. Id. The First Circuit since has acknowledged that Albright “virtually ... ■ foreclose^] reliance on substantive due process as the basis for a viable malicious prosecution claim under section 1983” and thereby supersedes the Circuit’s previous rule that a “ conscience-shocking” prosecution constituted a substantive due process violation. Perez-Ruiz, 25 F.3d at 42. Based on these precedents, the Court finds that Plaintiffs cannot assert a substantive due process claim. The Court also rejects Plaintiffs’ argument that the Brady violation and ensuing prosecution infringed on their procedural due process rights. Although the First Circuit has held that a procedural due process claim for malicious prosecution survives Albright, such a claim éxists only where no adequate “post-deprivation remedy” is available under state law. See Perez-Ruiz, 25 F.3d at 42 (finding existence of Puerto Rican statute creating cause of action for malicious prosecution “fatal” to plaintiffs’ procedural due process claim). In Maine, an action for malicious prosecution" }, { "docid": "15534577", "title": "", "text": "of the Fourteenth Amendment even if the plaintiff was never convicted. While' we held in Halsey that a fabricated evidence claim could proceed when a plaintiff was convicted at trial, we explicitly left open the question of whether such a claim would be viable if a plaintiff was acquitted. Consistent with other Courts of Appeals that have considered this question, as well as our reasoning in Halsey, we now hold that such a stand-alone fabrication of evidence claim can proceed if there is no conviction. We begin our analysis by examining our decision in Halsey. Much of our discussion in that decision centered upon which constitutional right was implicated by a fabricated evidence claim and, ultimately, whether there could be a stand-alone claim for fabrication of evidence. 750 F.3d at 288-96. The defendants rightly conceded that fabrication of evidence would deny a defendant due process of law, but they argued that a plaintiff could only seek redress through a Fourth Amendment malicious prosecution action, as “the two claims are intertwined and ... the former [a due process claim] can only exist as a portion of the latter [a Fourth Amendment malicious prosecution claim].” Id. at 290. The plaintiff countered that the Fourteenth Amendment due process clause protects the right to be free from evidence that is fabricated by state actors and is independent of a Fourth Amendment malicious prosecution claim. Id. at 290-91. Viewing both types of claims, we recognized that not all of the plaintiffs allegations may “fall under the traditional definition of a Fourth Amendment malicious prosecution claim.” Id. at 292. Further, we observed the untenable possibility “that there would not be a redressable constitutional violation when a state actor used fabricated evidence in a criminal proceeding if the plaintiff suing the actor could not prove the elements of a malicious prosecution case, such as the lack of probable cause for the prosecution.” Id. We also observed that “[w]hen falsified evidence is used as a basis to initiate the prosecution of a defendant, or is used to convict him, the defendant has been injured regardless of whether the" }, { "docid": "2993968", "title": "", "text": "v. Bor. of Ramsey, 162 N.J. 375, 744 A.2d 1146 (2000) (\"Probable cause is an absolute defense to Plaintiffs false arrest, false imprisonment, and malicious prosecution claims.”). . The record is unclear what, if anything, Mayor Fox told the judge. Accordingly, summary judgment will be denied for this reason as well. . Pomykacz apparently grounds her § 1983 malicious prosecution claim in the Fourth Amendment as well as the procedural and substantive Due Process Clauses of the Fourteenth Amendment. (Compl-¶ 37) While the Supreme Court has made clear that the substantive Due Process Clause cannot support a § 1983 malicious prosecution claim, see Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994), current jurisprudence allows for such a claim to proceed \" 'based on the Fourth Amendment, the procedural due process clause or other explicit text of the Constitution.’ ” Gordon v. City of Philadelphia, 40 Fed.Appx. 729, 730 (3d Cir.2002)(quoting Torres v. McLaughlin, 163 F.3d 169 (3d Cir.1998)). Accordingly, summary judgment will be granted with respect to the federal malicious prosecution claim insofar as it is based on the Fourteenth Amendment's substantive Due Process Clause. With regard to the Fourth Amendment and procedural Due Process Clause claims, the parties focus their analysis on the alleged Fourth Amendment violations, making no separate argument as to procedural due process. Accordingly, the Court will address the malicious prosecution claim as a Fourth Amendment claim and grant summary judgment with respect to the procedural due process claim. . Under New Jersey common law, no such deprivation of liberty is necessary to support a malicious prosecution claim. See Helmy v. City of Jersey City, 178 N.J. 183, 190, 836 A.2d 802 (2003). (\"In order to establish a claim for malicious prosecution, plaintiff must prove (1) that the criminal action was instituted by the defendant against the plaintiff, (2) that it was actuated by malice, (3) that there was an absence of probable cause for the proceeding, and (4) that it was terminated favorably to the plaintiff.”) . The actual warrant signed by Judge Belas-co sets bail at $2500 but the" }, { "docid": "22828371", "title": "", "text": "is no longer the case. In Albright, the Court held that a claim of malicious prosecution under section 1983 cannot be based on substantive due process considerations, but instead must be based on a provision of the Bill of Rights providing “an explicit textual source of constitutional protection.” Id. at 272, 114 S.Ct. 807 (citation and internal quotation marks omitted). This court has since noted that Albright “casts doubt” on prior circuit precedent adopting common law malicious prosecution as the test in a § 1983 action. Gallo v. City of Philadelphia, 161 F.3d 217, 221 (3d Cir.1998). The court in Gallo analyzed whether a malicious prosecution claim arose from the Fourth Amendment, i.e., whether the prosecution worked a post-indictment “seizure” on the § 1983 plaintiff. The court concluded that the malicious prosecution at issue did work a post-indictment seizure where the plaintiffs liberty “was constrained in multiple ways for an extended period of time.” Id. at 225. Specifically, the plaintiff was subjected to travel restrictions and was compelled to attend a number of court hearings over an eight-and-a-half month period. Id. Accordingly, the Gallo .court reversed the district court’s grant of summary judgment for the defendants, and remanded for further proceedings. We have expanded on the altered nature of the post-Albright malicious prosecution landscape in Torres v. McLaughlin, 163 F.3d 169 (3d Cir.1998). The Torres court read Albright as standing for the proposition that a section 1983 malicious prosecution claim could be based on a constitutional provision other than the Fourth Amendment, including the procedural component of the Due Process Clause, so long as it was not based on substantive due process. Id. at 173. Merkle predicates her constitutional malicious prosecution claim on the First and Sixth Amendments. We turn to her Sixth Amendment claim first because it requires only a minimum of discussion. It is difficult to understand how the Sixth Amendment is implicated here. That amendment affords individuals rights to a speedy trial, to an impartial jury, to know the nature and cause of a criminal accusation, to be confronted with the witnesses against them, and to effective" }, { "docid": "23333103", "title": "", "text": "on this appeal. See United States v. Voigt, 89 F.3d 1050, 1064 n. 4 (3d Cir.1996). But even if Lynch preserved the contention, it would be meritless in these summary judgment proceedings. Although, according to Pfeiffer, Halsey initially confessed to him alone, Lynch entered the room when Halsey made the detailed — and purportedly fabricated — statement that was passed page-by-page (either by Lynch or Pfeiffer) to Hancock, the prosecutor. Thus, the record supports a conclusion that Lynch played a role nearly as central as that of Pfeiffer in the fabrication of the confession. . The Fourth Amendment provides that: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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. . For two reasons our discussion of malicious prosecution, as distinguished from our discussion of fabrication of evidence, will center on the Fourth Amendment rather than on the Fourteenth Amendment. First, while Halsey pled both Fourth and Fourteenth Amendment malicious prosecution counts, at some point in the proceeding — certainly by the time of the appeal — he abandoned the Fourteenth Amendment iteration of the malicious prosecution claim, thus obviating the need for us to decide its viability. Compare Torres v. McLaughlin, 163 F.3d 169, 173 (3d Cir.1998) (reaffirming that section 1983 malicious prosecution claims cannot be based on substantive due process but declining to decide whether they could be grounded in procedural due process), with Gallo v. City of Philadelphia, 161 F.3d 217, 222 (3d Cir.1998) (suggesting that Supreme Court case law leaves only the Fourth Amendment as potential source of malicious prosecution claims). In addition, neither Halsey nor appellees point to other constitutional provisions cover ing malicious prosecutions. See, e.g., Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 792-93 (3d Cir.2000) (analyzing malicious prosecution claims predicated on the First and Sixth Amendments). Second, though appellees mention in passing and in general terms other" }, { "docid": "9226128", "title": "", "text": "of Philadelphia , and (3) theoretical underpinnings for a due process right against malicious prosecution. First , case law in this Circuit may be described as inconsistent. As our Court of Appeals acknowledged in 2014: [W]hile [the plaintiff] pled both Fourth and Fourteenth Amendment malicious prosecution counts, at some point in the proceeding ... he abandoned the Fourteenth Amendment iteration of the malicious prosecution claim, thus obviating the need for us to decide its viability . Compare Torres v. McLaughlin , 163 F.3d 169, 173 (3d Cir. 1998) (reaffirming that § 1983 malicious prosecution claims cannot be based on substantive due process but declining to decide whether they could be grounded in procedural due process ), with Gallo v. City of Philadelphia , 161 F.3d 217, 222 (3d Cir. 1998) (suggesting that Supreme Court case law leaves only the Fourth Amendment as potential source of malicious prosecution claims). Halsey , 750 F.3d at 290 n.14 (emphasis added). In other words, the Third Circuit Court of Appeals has not actually decided whether such a procedural due process right exists. Second , Wright v. City of Philadelphia concluded that a plaintiff's Fourteenth Amendment claims were \"most analogous to malicious prosecution\" because they \"involved the trial process itself.\" 229 F.Supp.3d 322, 331 (E.D. Pa. 2017). At first glance, this seems to endorse the existence of a malicious prosecution claim based on the Fourteenth Amendment. But the Court's Wright decision actually was limited to a decision of whether the claims were closer to false imprisonment or to malicious prosecution for the purpose of determining the statute of limitations : Pursuant to the paradigm set up in Wallace [v. Kato , 549 U.S. 384, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007) ], a § 1983 plaintiff's claims based on wrongful detention are either analogous to the tort of false imprisonment (if the claims are premised on wrongful detention without legal process) or the tort of malicious prosecution (if the claims are premised on wrongful detention pursuant to the wrongful use of legal process).... Here, the claims ... are most analogous to the tort of malicious" }, { "docid": "23333056", "title": "", "text": "conclusion that one factual premise could not form the bases of separate claims of constitutional violations under section 1983). The second group of cases that appellees cite involve plaintiffs against whom the germane criminal charges were dismissed before trial. See, e.g., Molina v. City of Lancaster, 159 F.Supp.2d 813 (E.D.Pa. 2001). These decisions are inapposite here because, as we noted earlier, we do not decide today whether pre-trial detentions can implicate constitutional rights beyond the Fourth Amendment inasmuch as we are dealing with injuries that go far beyond the injury to Halsey attributable to his pre-trial detention. To be sure, some courts have expressed uncertainty as to whether section 1983 evidence-fabrication claims can stand alone, and Zahrey v. City of N.Y., No. 98-4546, 2009 WL 54495, at *36 n. 47 (S.D.N.Y. Jan. 7, 2009), helpfully collects some of those cases. Zahrey points out that “[t]here seems to be some question in [the Second Circuit] as to whether evidence fabrication creates a section 1983 cause of action separate and apart from a malicious prosecu tion action.” But at least some of the courts that treat fabrication and malicious prosecution claims together, as the Court of Appeals for the Second Circuit appeared to have done in Jocks v. Tavernier, 316 F.3d 128 (2d Cir.2003), have done so in circumstances that we already have distinguished, namely where the evidence-falsification did not result in a conviction or where a plaintiff did not clearly advance a claim predicated on fabrication alone. In any event, we reject the contention that there cannot be a stand-alone Fourteenth Amendment claim predicated on the fabrication of evidence. We find much support for our conclusion. For example, the Court of Appeals for the Fifth Circuit has found jury instructions “deeply flawed” when they limited the jury’s use of fabricated evidence to evaluate a Fourth Amendment malicious prosecution claim without allowing a finding of a Fourteenth Amendment due process violation. Castellano v. Fragozo, 352 F.3d 939, 955 (5th Cir.2003) (en banc). See also Lowery v. Cnty. of Riley, 522 F.3d 1086, 1093 (10th Cir.2008) (affirming district court’s denial of qualified immunity" }, { "docid": "1010060", "title": "", "text": "state law who deprives an individual of \"rights, privileges, or immunities secured by the Constitution,” but § 1983 itself does not define those rights. Prior to 1994, we recognized a § 1983 claim for malicious prosecution under the Substantive Due Process Clause of the Fourteenth Amendment. See, e.g., Henry v. Metro. Sewer Dist., 922 F.2d 332, 340 (6th Cir. 1990). Following the Supreme Court’s splintered decision in Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994), in which a plurality of the Court concluded that § 1983 claims for malicious prosecution could be brought only under the Fourth Amendment and not under the Substantive Due Process Clause of the Fourteenth Amendment, our circuit recognized a Fourth Amendment malicious-prosecution claim, with its four elements as recited above by Sykes and Sanders. See Spurlock v. Satterfield, 167 F.3d 995, 1005-06 (6th Cir. 1999) (recognizing the malicious-prosecution claim) (citing Smith v. Williams, 78 F.3d 585, at *5 (6th Cir. 1996) (unpublished table decision)). We rejected the requirement of malice on the grounds that Albright required us to look to the constitutional substance of the Fourth Amendment to set forth the elements of a § 1983 malicious-prosecution claim (i.e., an unreasonable seizure without probable cause), rather than looking to the elements of an analogous common-law claim for malicious prosecution, which several other circuits have done. See Manganiello v. City of New York, 612 F.3d 149, 160-61 (2d Cir. 2010); McKenna v. City of Philadelphia, 582 F.3d 447, 461 (3d Cir. 2009); Lassiter v. City of Bremerton, 556 F.3d 1049, 1054 (9th Cir. 2009); Wilkins v. DeReyes, 528 F.3d 790, 799 (10th Cir. 2008); Grider v. City of Auburn, 618 F.3d 1240, 1256 (11th Cir. 2010). In short, we have conformed our § 1983 jurisprudence to the demands of new factual applications and new Supreme Court recognitions of \"constitutional rights,” and we have distinguished our recognition of § 1983 claims from, for example, our articulation of whether a given right is clearly established, or our articulation of the mens rea requirement that a plaintiff must prove in order to overcome a" } ]

[ { "docid": "22677919", "title": "", "text": "enumerated offenses of burglary, arson, extortion, and explosives use is not “completion.” Rather, it is that all of these offenses, while not technically crimes against the person, nevertheless create significant risks of bodily injury or confrontation that might result in bodily injury. As we noted in Taylor: “Congress thought that certain general categories of property crimes — namely burglary, arson, extortion, and the use of explosives — so often presented a risk of injury to persons, or were so often committed by career criminals, that they should be included in the enhancement statute even though, considered solely in terms of their statutory elements, they do not necessarily involve the use or threat of force against a person.” 495 U. S., at 597. See also id., at 588 (noting that Congress singled out burglary because it “often creates the possibility of a violent confrontation”); United States v. Adams, 51 Fed. Appx. 507, 508 (CA6 2002) (arson presents “a serious potential risk of physical injury to another” because “[n]ot only might the targeted building be occupied,” but also “the fire could harm firefighters and onlookers and could spread to occupied structures”); H. R. Rep. No. 99-849, p. 3 (1986) (purpose of clause (ii) was to “add State and Federal crimes against property such as burglary, arson, extortion, use of explosives and similar crimes as predicate offenses where the conduct involved presents a serious risk of injury to a person”). Congress’ inclusion of a broad residual provision in clause (ii) indicates that it did not intend the preceding enumerated offenses to be an exhaustive list of the types of crimes that might present a serious risk of injury to others and therefore merit status as a § 924(e) predicate offense. Nothing in the statutory language supports the view that Congress intended to limit this category solely to completed offenses. C James also relies on ACCA’s legislative history to buttress his argument that clause (ii) categorically excludes attempt offenses. In the deliberations leading up to ACCA’s adoption in 1984, the House rejected a version of the statute that would have provided enhanced penalties for" } ]

[ { "docid": "1948641", "title": "", "text": "the sentencing guideline. Violence is not an element of battery under Illinois law, or even of aggravated battery under 720 ILCS 5/12-4(b), as distinct from under 4(a). Remember that under 4(b) aggravated battery is simple battery plus an aggravating factor, and neither simple battery nor the 4(b) aggravating factor need be violent. Simple battery can consist of just “physical contact of an insulting or provoking nature” with the victim, and the aggravating factor can just be the fact that, as in this case, the simple battery occurred on a public way. But this means that had the defendant merely spat on his victim while the two were standing on a public sidewalk, this would be an aggravated battery but not a crime of violence, as it would involve a merely “insulting or provoking” physical contact. The terms “insulting” and “provoking” are taken from the common law tort of battery, which requires only an offensive contact — the sort of thing that might provoke a breach of the peace. Spitting on a person is the standard example of a provoking act, e.g., Alcorn v. Mitchell, 63 Ill. 553 (1872); Cohen v. Smith, 269 Ill.App.3d 1087, 207 Ill.Dec. 873, 648 N.E.2d 329, 331-33 (1995), as distinct from a violent one. Cf. United States v. Evans, 576 F.3d 766, 767-68 (7th Cir.2009) (per curiam). By its reference to conduct that “causes bodily harm,” the statute embraces violent batteries as well, id. at 768-69; Allstate Ins. Co. v. Kovar, 363 Ill.App.3d 493, 299 Ill.Dec. 916, 842 N.E.2d 1268, 1270-71 (2006), but just being told that a person was convicted of aggravated battery because he committed a battery on a public way does not enable an inference that he was convicted of a crime of violence. When the same state criminal statute punishes conduct that is and conduct that is not a crime of violence for purposes of federal sentencing, the federal court is not permitted to determine which kind of conduct the defendant engaged in if the determination would require resolving a factual dispute. For that would require a trial within the sentencing hearing" }, { "docid": "22962891", "title": "", "text": "of an offense that has as an element the use or attempted use of force against the person of another. These provisions also include a residual category. The Guidelines define as a “crime of violence” any offense that: is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. U.S.S.G. § 4B1.2(a)(2). Begay understands the “otherwise involves ...” language of § 924(e)(2)(B)(ii) to cover only crimes “similar” to burglary, arson, extortion, and explosives offenses in the sense that they involve “purposeful, violent, and aggressive conduct”. 128 S.Ct. at 1586. This led the Court to hold in Begay that drunk driving does not qualify, because the driver does not set out to harm anyone, and in Chambers v. United States, - U.S. -, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009), that failure to report to prison and walkaway escapes are not violent felonies. See also United States v. Templeton, 543 F.3d 378 (7th Cir.2008) (anticipating the holding of Chambers). Begay creates problems of classification. It may be easy to tell when a person’s conduct was violent and aggressive, but whether a crime of conviction entails such conduct can be tricky, because it is necessary to think through the many varieties of behavior within a law’s domain. States did not write their statutes with Begay in mind. Many laws penalize categories of activity, some violent and some not. Or they may penalize reckless conduct. Criminal recklessness is a form of intent, see Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), but particular laws may employ that mental state in idiosyncratic ways. Still other laws may apply a negligence standard to one element of an offense, recklessness to a second, knowledge to a third, and purpose to a fourth. There are many thousands of state and federal criminal stat utes. The judiciary needs a list or a set of categories rather than an open-ended standard, but for now we must make do. Begay requires us to ask whether a crime that poses" }, { "docid": "22307221", "title": "", "text": "244; Lynch v. Commonwealth, 131 Va. 762, 109 S.E. 427, 428 (1921). Thus, because this physical contact element of ABPO in Virginia may be satisfied in a relatively inconsequential manner, that statute cannot, by reason of its elements, be viewed as presenting a serious potential risk of physical injury. See United States v. Evans, 576 F.3d 766, 768 (7th Cir.2009) (stating that “insulting or provoking physical contact,” an offense that “could be no more violent than spitting,” is not “comparable to burglary, arson, extortion, or a crime involving the use of explosives,” “[n]or could it be said to present a serious risk of physical injury”) (emphasis in original). Our conclusion is not altered by the fact that the victim in an ABPO in Virginia is a law enforcement officer engaged in the performance of official duties. Although some of our sister circuits addressing ABPO in other jurisdictions have reached a contrary conclusion, see, e.g., United States v. Dancy, 640 F.3d 455, 470 (1st Cir.2011), United States v. Williams, 559 F.3d 1143, 1149 (10th Cir.2009), Rozier v. United States, 701 F.3d 681, 682 (11th Cir.2012), we decline to adopt their analysis, because we do not think that the victim’s occupation as a trained law enforcement officer, of itself, elevates the risk of physical injury to a level comparable to that found in the commission of burglary of a dwelling, arson, extortion, or crimes involving explosives. Moreover, the elements of ABPO in Virginia do not restrict the scope of offending conduct in a manner that signals such an elevated serious potential risk of physical injury, as would be the case by adding the element of use of a dangerous instrumentality or by requiring more than minimal physical contact. See United States v. Hampton, 675 F.3d 720, 731 (7th Cir.2012) (explaining that “vehicular flight is inherently more risky than making insulting or provoking contact with an officer,” because such flight involves the “use of a dangerous instrumentality”); Evans, 576 F.3d at 768 (requiring intended or actual application of more than a de minimis level of physical contact). We would do a great disservice" }, { "docid": "4843285", "title": "", "text": "crime can be classified as a “violent felony” in either of two ways: if it (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.] 18 U.S.C. § 924(e)(2)(B). Romanette (i) does not apply to Goodpasture, because physical force is not an element of the § 288(a) offense. Tickling involves a touching but is not ordinarily understood to involve “force”; likewise French kissing and fondling usually are gentle. A child in California cannot give a valid consent to sexual acts, but the absence of consent does not turn a light touch into “physical force against the person of another”. Unless the Supreme Court holds in Johnson v. United States, cert. granted, — U.S. -, 129 S.Ct. 1315, 173 L.Ed.2d 583 (2009) (argued Oct. 6, 2009), that any unconsented touching is “physical force” for federal purposes, the sort of conduct covered by § 288(a) does not come within romanette (i). See Flores v. Ashcroft, 350 F.3d 666 (7th Cir.2003). The “physical force” to which romanette (i) refers is the kind capable of causing bodily injury, not the kind that poses a psychological risk (the subject of § 288(a)). Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), thought that “serious potential risk of physical injury” in romanette (ii) must be read in the context of the language about burglary, arson, extortion, and explosives. Begay concludes that only “purposeful, violent, and aggressive conduct” that creates a serious risk of physical injury comes within the statute. 128 S.Ct. at 1586. This led it to hold that felony drunk driving is not a violent felony, even if someone dies as a result. Nor is failure to report to prison, because that is not violent or aggressive. Chambers v. United States, — U.S. -, 129 S.Ct. 687, 692, 172 L.Ed.2d 484 (2009). See also United States v. Templeton, 543 F.3d 378 (7th Cir.2008) (walkaway" }, { "docid": "5130481", "title": "", "text": "subsection of section 4131.2(a) of the guidelines, the crime must be similar to the offenses listed in that subsection' — similar, that is, to burglary of a dwelling, arson, extortion, any crime that involves the use of explosives, or any other crime that presents a serious risk of physical injury. Begay v. United States, - U.S. -, -, 128 S.Ct. 1581, 1585, 170 L.Ed.2d 490 (2008); James v. United States, 550 U.S. 192, 203-09, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). Merely careless (even though criminal and dangerous) conduct will not suffice, how-ever. Begay v. United States, supra, 128 S.Ct. at 1586-88; United States v. Woods, 576 F.3d 400, 409-13 (7th Cir.2009). That is not a problem in this case; the Illinois statute requires that the defendant’s “insulting or provoking” physical contact with the victim be intentional or, what amounts to the same thing, knowing. See, e.g., United States v. Holland, 831 F.2d 717, 722-23 (7th Cir.1987). But an “insulting or provoking” physical contact, though intentional, could be no more violent than spitting, and a battery that consists merely of deliberately spitting on someone is not comparable to burglary, arson, extortion, or a crime involving the use of explosives. Nor could it be said to present a serious risk of physical injury, United States v. Jones, 235 F.3d 342, 346-48 (7th Cir.2000), though some courts would disagree, most clearly the Tenth Circuit. See United States v. Paxton, 422 F.3d 1203, 1205-07 (10th Cir.2005). Although the words “insulting or provoking” make it sound as if all that the Illinois legislature had in mind is the kind of light offensive touching familiar from civil battery cases, the Illinois courts have held that it embraces more forceful blows as well, the kind that as in this case can knock a person to the ground. Allstate Ins. Co. v. Kovar, 363 Ill.App.3d 493, 299 Ill.Dec. 916, 842 N.E.2d 1268, 1270-71 (2006); People v. Young, 362 Ill.App.3d 843, 298 Ill.Dec. 712, 840 N.E.2d 825, 832-33 (2005); cf. People v. Reynolds, 359 Ill.App.3d 207, 295 Ill.Dec. 361, 832 N.E.2d 512, 517 (2005). Were it not for" }, { "docid": "22924897", "title": "", "text": "1581, 170 L.Ed.2d 490 (2008), “makes clear that the presence of a serious potential risk of physical injury alone is not sufficient to establish that the conviction is a ‘crime of violence’ under the ‘otherwise’ clause of USSG § 4B1.2(a)(2).” Johnson, 2009 WL 224036, at *7. Indeed, the Supreme Court in Begay stated that the ACCA’s “listed examples—burglary, arson, extortion, or crimes involving the use of explosives—illustrate the kinds of crimes that fall within the statute’s scope. Their presence indicates that the statute covers only similar crimes, rather than every crime that ‘presents a serious potential risk of physical injury to another.’ ” Begay, 128 S.Ct. at 1584-85 (quoting 18 U.S.C. § 924(e)(2)(B)(iii)). Thus, the Court concluded that the clause only covers crimes that “are roughly similar, in kind as well as in degree of risk posed, to the examples themselves.” Id. at 1587. Because the crime of driving under the influence did not involve the kind of “purposeful, violent, and aggressive” conduct as the listed examples, the Court held that it fell outside the scope of the ACCA’s “violent felony” definition. Id. at 1586, 1588. Even more recently, in Chambers v. United States, the Court held that the Illinois offense of failure to report to a penal institution did not constitute a “violent felony,” noting that the elements of the crime were a “far cry from the purposeful, violent, and aggressive conduct potentially at issue when an offender uses explosives against property, commits arson, burgles a dwelling or residence, or engages in certain forms of extortion.” — U.S. —, 129 S.Ct. 687, 692, 172 L.Ed.2d 484 (2009) (citing Begay, 128 S.Ct. at 1586) (internal quotation marks omitted). After Begay, this court has held that the career offender provision of the Guidelines “also should be limited to crimes that are similar in both kind and in degree of risk to the enumerated examples—burglary of a dwelling, arson, extortion, or crimes involving the use of explosives.” Bartee, 529 F.3d at 363. We agree with this court’s decision in Johnson and conclude that, insofar as the district court determined that defendant’s Tennessee" }, { "docid": "22924898", "title": "", "text": "scope of the ACCA’s “violent felony” definition. Id. at 1586, 1588. Even more recently, in Chambers v. United States, the Court held that the Illinois offense of failure to report to a penal institution did not constitute a “violent felony,” noting that the elements of the crime were a “far cry from the purposeful, violent, and aggressive conduct potentially at issue when an offender uses explosives against property, commits arson, burgles a dwelling or residence, or engages in certain forms of extortion.” — U.S. —, 129 S.Ct. 687, 692, 172 L.Ed.2d 484 (2009) (citing Begay, 128 S.Ct. at 1586) (internal quotation marks omitted). After Begay, this court has held that the career offender provision of the Guidelines “also should be limited to crimes that are similar in both kind and in degree of risk to the enumerated examples—burglary of a dwelling, arson, extortion, or crimes involving the use of explosives.” Bartee, 529 F.3d at 363. We agree with this court’s decision in Johnson and conclude that, insofar as the district court determined that defendant’s Tennessee reckless endangerment conviction qualified as a “crime of violence” under the Guidelines, there was insufficient evidence for it to do so. Although it is hardly debatable that the elements of felony reckless endangerment in Tennessee “present! ] a serious potential risk of physical injury to another,” § 4B1.2(a)(2), the offense does not clearly involve the type of “purposeful, violent, and aggressive” conduct as burglary, arson, extortion, or the use of explosives, Begay, 128 S.Ct. at 1586. Rather, on its face the statute criminalizes only reckless conduct. See Tenn.Code Ann. § 39-13-103(a); see also United States v. Gray, 535 F.3d 128, 132 (2d Cir.2008) (holding that a similar reckless endangerment statute under New York law is not a “crime of violence” because it “does not criminalize purposeful or deliberate conduct”). Accordingly, we reverse and vacate defendant’s sentence and remand to the district court for resentencing on the limited issue of whether defendant was entitled to a career offender enhancement in light of Begay. We do so despite the fact that the Supreme Court decided Be-gay after" }, { "docid": "5130482", "title": "", "text": "battery that consists merely of deliberately spitting on someone is not comparable to burglary, arson, extortion, or a crime involving the use of explosives. Nor could it be said to present a serious risk of physical injury, United States v. Jones, 235 F.3d 342, 346-48 (7th Cir.2000), though some courts would disagree, most clearly the Tenth Circuit. See United States v. Paxton, 422 F.3d 1203, 1205-07 (10th Cir.2005). Although the words “insulting or provoking” make it sound as if all that the Illinois legislature had in mind is the kind of light offensive touching familiar from civil battery cases, the Illinois courts have held that it embraces more forceful blows as well, the kind that as in this case can knock a person to the ground. Allstate Ins. Co. v. Kovar, 363 Ill.App.3d 493, 299 Ill.Dec. 916, 842 N.E.2d 1268, 1270-71 (2006); People v. Young, 362 Ill.App.3d 843, 298 Ill.Dec. 712, 840 N.E.2d 825, 832-33 (2005); cf. People v. Reynolds, 359 Ill.App.3d 207, 295 Ill.Dec. 361, 832 N.E.2d 512, 517 (2005). Were it not for this judicial gloss, the aggravated-battery statute would fail to reach a class of batteries that is at least as serious as the ones it does reach. Kissing a pregnant woman knowing she didn’t want to be kissed is an aggravated battery. But if the statute is confined to physical contacts that, like kissing, do not inflict any bodily harm, then if the defendant’s victim did not belong to any of the vulnerable groups enumerated in 720 ILCS 5/12-4(b) he would not be guilty of aggravated battery even if instead of kissing her he beat her up, provided only that he did not cause “great bodily harm, or permanent disability or disfigurement.” § 12-4(a). Thus, the same statute, the same form of words, embraces two crimes: offensive battery, and forcible battery. If the two crimes were in separate sections of the battery statute (or within the same section but listed separately, Nijhawan v. Attorney General, - U.S. -, 129 S.Ct. 2294, 2299, 174 L.Ed.2d 22 (2009), as would be the case if the same section punished" }, { "docid": "23060655", "title": "", "text": "he has been convicted of at least two prior felony “crime[s] of violence.” Id. § 4Bl.l(a). A “crime of violence” is an offense that warrants at least a year in prison and that “(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id. § 4B 1.2(a). Acknowledging that his robbery convictions — his present one and his earlier one — amount to crimes of violence, Ford argues that his second-degree-escape conviction does not. That type of conviction, everyone agrees, does not contain a use-of-force element, and it is not a burglary-of-a-dwelling, arson, extortion or use-of-explosives offense. That leaves the possibility that the offense “otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id. Two inquiries guide our application of the residual clause. One, does the crime present a serious potential risk of violence akin to the listed crimes? See James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 1594-98, 167 L.Ed.2d 532 (2007). Two, does the crime involve the same kind of “purposeful, violent, and aggressive conduct” as the listed crimes? Begay v. United States, — U.S. —, 128 S.Ct. 1581, 1586, 170 L.Ed.2d 490 (2008); see also Chambers v. United States, — U.S. —, 129 S.Ct. 687, 692, 172 L.Ed.2d 484 (2009). That an offense presents a risk of physical injury to others, as Begay demonstrates, does not by itself suffice to show that it is a crime of violence. Otherwise, drunk driving would be a crime of violence, and Begay makes clear that it is not. Begay, 128 S.Ct. at 1583; see United States v. Templeton, 543 F.3d 378, 383 (7th Cir.2008). In answering these questions, we treat a “crime of violence” under § 4Bl.l(a) of the guidelines the same as a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1); see United States v. Houston, 187 F.3d 593," }, { "docid": "16804968", "title": "", "text": "(11th Cir.2009); cf. United States v. Tyler, 580 F.3d 722, 726 (8th Cir.2009) (holding that Minnesota’s resisting statute, which required increased speed or reckless driving, is not a violent felony under the ACCA’s residual clause). For the reasons discussed below, we decline to do so. The ACCA mandates a fifteen-year mandatory minimum prison sentence for anyone convicted under 18 U.S.C. § 922(g)(1), if that person has previously been convicted of three or more violent felonies. 18 U.S.C. § 924(e)(1). A violent felony is “any crime punishable by imprisonment for a term exceeding one year” that “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). Typically, our task would be to apply the categorical approach for determining whether a prior conviction is a violent felony, set out by the Supreme Court in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). Begay requires us to first “categorize” the conduct proscribed by making a determination based on the statutory elements of the crime, as to what type of conduct characterizes the typical commission of the crime. Id. at 1586-87; United States v. Dismuke, 593 F.3d 582, 588-89 (7th Cir.2010). Once we have identified the conduct involved in a typical commission of the predicate crime, we then employ a two-step analysis to determine whether that typical violation is a violent felony under the ACCA. In the first step, we determine whether the conduct involves a similar degree of risk of serious bodily injury to others as the crimes listed in the ACCA — burglary, arson, extortion and the use of explosives. Dismuke, 593 F.3d 582, 589-90. Second, the typical predicate crime must also be similar in kind to the ACCA’s enumerated crimes, meaning it must involve the same kind of “purposeful, violent and aggressive” behavior that shows “an increased likelihood that the offender is the kind of" }, { "docid": "22962890", "title": "", "text": "with whom POSNER and TINDER, Circuit Judges, join, dissenting. Begay v. United States, - U.S. -, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), called into question many of this court’s decisions interpreting U.S.S.G. § 4B1.2(a)(2) and similar recidivism provisions, such as 18 U.S.C. § 16(b) and § 924(e)(2)(B)(ii). Last January the court set for argument before two panels several appeals that presented issues affected by Begay. As it happens, the six judges on those panels do not agree on how Begay applies, so proposed opinions in two cases were circulated to the full court under Circuit Rule 40(e). We decided to resolve the disputes through this circulation, without argument en banc. The approach proposed by the panel in Woods has the support of a majority and becomes the law of the circuit. I disagree with some aspects of the panel’s analysis and would proceed differently. The career-offender portion of the Sentencing Guidelines, like 18 U.S.C. § 16 and § 924(e)(2)(B), counts toward the total of the defendant’s “crimes of violence” or “violent felonies” any conviction of an offense that has as an element the use or attempted use of force against the person of another. These provisions also include a residual category. The Guidelines define as a “crime of violence” any offense that: is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. U.S.S.G. § 4B1.2(a)(2). Begay understands the “otherwise involves ...” language of § 924(e)(2)(B)(ii) to cover only crimes “similar” to burglary, arson, extortion, and explosives offenses in the sense that they involve “purposeful, violent, and aggressive conduct”. 128 S.Ct. at 1586. This led the Court to hold in Begay that drunk driving does not qualify, because the driver does not set out to harm anyone, and in Chambers v. United States, - U.S. -, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009), that failure to report to prison and walkaway escapes are not violent felonies. See also United States v. Templeton, 543 F.3d 378 (7th Cir.2008) (anticipating the holding of Chambers). Begay" }, { "docid": "7175130", "title": "", "text": "crime of violence under § 4B1.2(a) of the Guidelines is a legal issue that we review de novo. See United States v. Jenkins, 631 F.3d 680, 682 (4th Cir.2011). III. A. The term “crime of violence” is defined in the Guidelines as any offense “punishable by imprisonment for a term exceeding one year,” and that (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. USSG § 4131.2(a). The primary issue in Mobley’s appeal is whether his offense of conviction falls within the “residual clause” of § 4B1.2(a)(2) — that is, whether possession of a shank while in prison at Butner “otherwise involves conduct that presents a serious potential risk of physical injury to another.” On appeal, Mobley maintains that “mere possession” of a shank in prison does not, under the relevant authorities, involve the active or assaultive conduct required of a crime of violence under the Guidelines. He asserts that mere possession of a shank in prison is a passive crime and does not constitute confrontational conduct, and that the offense of conviction does not present the serious risk of physical injury contemplated by the Guidelines in defining a crime of violence. In order to properly assess this issue, it is necessary to briefly review the relevant legal principles and Guidelines commentary. The Supreme Court has identified and explained the principles underlying what constitutes a violent felony under the Armed Career Criminal Act (the “ACCA”), or, for the purposes of this appeal, a crime of violence under § 4B1.2 of the Guidelines. See, e.g., Sykes v. United States, — U.S. -, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011); Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009); Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). In Begay, the Supreme Court explained the ACCA’s enumerated offenses of burglary, arson, or" }, { "docid": "15441206", "title": "", "text": "before us is whether criminal recklessness may be classified as a violent felony under the so-called “residual clause” because it “otherwise involves conduct that presents a serious potential risk of physical injury.” Id. We previously have held that criminal recklessness does qualify as a crime of violence for purposes of sentencing under the ACCA, see United States v. Newbern, 479 F.3d 506, 509-11 (7th Cir.2007); United States v. Jackson, 177 F.3d 628, 633 (7th Cir.1999), because it presents a serious potential risk of physical injury to another. See generally James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) (discussing the degree of risk required for an offense to fall within the residual clause). Six days before oral argument in this case, however, the Supreme Court decided Begay v. United States, — U.S. -, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), which added an additional layer of analysis. We asked the parties to submit supplemental briefs analyzing how Begay affects this issue. In Begay, the Supreme Court held that New Mexico’s felony offense of driving under the influence (“DUI”) could not be considered a violent felony under the re sidual clause of the ACCA. Begay, 128 S.Ct. at 1588. Although the Court assumed that driving under the influence involves conduct that “presents a serious risk of physical injury to another,” id. at 1585, it nevertheless found that driving under the influence falls outside the scope of the residual clause because it “is simply too unlike the provision’s listed examples for us to believe that Congress intended the provision to cover it.” Id. The Court reasoned that the listed offenses in § 924(e) (2) (B) (ii) — burglary, arson, extortion and the use of explosives— “illustrate the kinds of crimes that fall within the statute’s scope.” Id. at 1584-85. Examining the listed crimes, the Court concluded that, in addition to posing a serious risk of injury to others, the commonality shared by the listed crimes was that each involved “purposeful, violent, and aggressive conduct.” Id. at 1586 (internal quotation marks and citations omitted). By contrast, it noted," }, { "docid": "21558430", "title": "", "text": "United States v. Dickerson, 77 F.3d 774, 775 (4th Cir.1996))). III. Under the ACCA, a violent felony either “has as an element the use, attempted use, or threatened use of physical force,” or is “burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). The parties do not argue that Virginia’s carnal knowledge offense, which criminalizes carnal knowledge of a minor “without the use of force,” does not fall under the definition’s first prong. Rather, they frame the issue as whether Virginia’s carnal knowledge offense is sufficiently similar to the crimes enumerated in 18 U.S.C. § 924(e)(2)(B)(ii) and whether it involves a “serious potential risk of physical injury.” In arguing that Virginia’s carnal knowledge offense does not fall under the second prong of section 924(e)(2)(B), Thornton relies heavily on Begay v. United States, — U.S.-, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), which postdates the district court’s decision. In Begay, the Supreme Court addressed whether New Mexico’s offense of driving under the influence of alcohol (“DUI”) constituted a violent felony under 18 U.S.C. § 924(e)(2)(B)(ii). The Begay Court held that violent felonies under the second prong are limited to crimes “that are roughly similar, in kind as well as in degree of risk posed, to the examples” of arson, burglary, extortion, and crimes involving explosives. Id. at 1585. The Court found that New Mexico’s DUI offense is not a violent felony under the second prong because unlike the exemplar crimes, it does not “involve purposeful, violent, and aggressive conduct” and is not “characteristic of the armed career criminal.” Id. at 1586 (quotations and citation omitted). Rather, the Court likened DUI to “crimes that impose strict liability, criminalizing conduct in respect to which the offender need not have had any criminal intent at all.” Id. at 1586-87. The Court found that a DUI conviction did not “show an increased likelihood that the offender is the kind of person who might deliberately point the gun and pull the trigger.” Id. at 1587. Thornton argues that" }, { "docid": "5537987", "title": "", "text": "manner,” Ind.Code § 35-42-2-1, was not a crime of violence under 18 U.S.C. § 16(a) because a person could be convicted based on slight offensive physical contact, such as tossing, a paper airplane that inflicts a paper cut or a snowball that causes minor pain. This, we said, “is hard to describe ... as ‘violence.’ ” Flores, 350 F.3d at 670. Flores came before both LaGuerre and Upton, and yet it did not mandate a different outcome in those cases. That is because Flores — and Johnson for that matter — addressed a form of battery akin to physical contact of an insulting or provoking nature under Illinois law. See 720 111. Comp. Stat. 5/12 — 3.2(a)(2). Battery under section 5/12 — 3.2(a)(2) may be offensive, but it does not require violent physical force as an element. See United States v. Aviles-Solarzano, 623 F.3d 470, 472 (7th Cir.2010); United States v. Evans, 576 F.3d 766, 767-68 (7th Cir.2009); Garcia-Meza v. Mukasey, 516 F.3d 535, 537 (7th Cir.2008). For instance, one common way to violate section 5/12 — 3.2(a)(2) is by spitting on another. See Alcorn v. Mitchell, 63 Ill. 553 (Ill.1872); People v. Wrencher, 399 Ill.App.3d 1136, 341 Ill.Dec. 45, 929 N.E.2d 1124, 1135-36 (2009) (spitting on police officer was physical contact of an insulting or provoking nature). Here, in contrast, De Leon’s relevant conviction was for intentionally causing bodily harm to his wife in violation of section 5/12-3.2(a)(l). Battery causing bodily harm entails physical force because “some sort of physical pain or damage to the body, like lacerations, bruises or abrasions, whether temporary or permanent, is required” to convict. People v. Mays, 91 Ill.2d 251, 62 Ill.Dec. 945, 437 N.E.2d 633, 635-36 (1982); see People v. Kyles, 303 Ill.App.3d 338, 236 Ill.Dec. 805, 708 N.E.2d 391, 401 (1998). The degree of injury has “a logical relation to the ‘use of physical force’ under § 16(a).” Flores, 350 F.3d at 669. Johnson held that so long as the force involved is “capable of causing physical pain or injury to another person,” — as battery under section 5/12-3.2(a)(l) requires — the" }, { "docid": "13284135", "title": "", "text": "resulting in physical injury. Accordingly, we must examine the indictment and jury instructions to establish the “nature of the offense” charged. Id. In this case, Johnson was unambiguously charged with and convicted of the intentional attempt to cause physical injury to another. Having clarified the nature of the crime at issue, we must determine whether it constitutes a “violent felony.” The government contends that Johnson’s conviction for third-degree assault qualifies as a violent felony because it “otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). This statutory language, often referred to as the “residual clause,” Chambers, 555 U.S. at 124, 129 S.Ct. 687, “is not intended as a catchall provision.” Benton, 639 F.3d at 731. “Instead, ‘the provision’s listed examples— burglary, arson, extortion, or crimes involving the use of explosives — illustrate the kinds of crimes that fall within the statute’s scope. Their presence indicates that the statute covers only similar crimes, rather than every crime that ‘presents a serious potential risk of physical injury to another.’” Id. (quoting Begay v. United States, 553 U.S. 137, 142, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008)). Therefore, an offense is a violent felony if it is “roughly similar, in kind as well as in degree of risk posed,” to the listed examples, which typically involve “purposeful, violent, and aggressive conduct.” Begay, 553 U.S. at 143-45, 128 S.Ct. 1581. In addition, we must consider whether the prior offense “conduct is such that it makes more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim.” Id. at 145, 128 S.Ct. 1581. We have formulated these considerations into a two-part test. To be considered a “violent felony” under the residual clause of the ACCA, the offense must “(1) pose[ ] a serious potential risk of physical injury to others; and (2) involve[ ] the same kind of purposeful, violent, and aggressive conduct as the enumerated offenses of burglary, arson, extortion, or offenses involving the use of explosives.” Young, 580 F.3d at 377. Recently, however, the Supreme Court has" }, { "docid": "23416485", "title": "", "text": "felony as any crime punishable by imprisonment for a term exceeding one year ... that— (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. 18 U.S.C. § 924(e)(2)(B). The parties do not dispute that failing to stop at an officer’s command is an offense punishable under Utah law for a term of imprisonment exceeding one year. The Government then asserts that such a conviction falls within the ACCA’s residual language because it “otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id. § 924(e)(2)(B)(ii). Applying the Supreme Court’s decision in Begay v. United States, — U.S.-, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), we conclude that, under a categorical approach, a prior conviction under Utah law for failing to stop at an officer’s command qualifies as a violent felony under the ACCA’s residual language. a. Applying Begay In determining whether a prior conviction qualifies as a violent felony under the ACCA’s residual provision, Begay requires a two-part inquiry, considering both (1) whether the offense of conviction “presents a serious potential risk of physical injury to another,” 18 U.S.C. § 924(e)(2)(B)(ii); and (2) whether the offense is “roughly similar, in kind as well as in degree of risk posed, to the” offenses specifically enumerated in § 924(e)(2)(B)(ii) — burglary, arson, extortion, or crimes involving explosives. Begay, 128 S.Ct. at 1585; see United States v. Mayer, 530 F.3d 1099, 1109 (9th Cir.2008); see also United States v. Smith, 544 F.3d 781, 783-84 (7th Cir.2008); United States v. Gray, 535 F.3d 128, 130-31 (2d Cir.2008) (applying Begay to determine if prior convictions were crimes of violence for purposes of U.S.S.G. § 4B1.2); United States v. Archer, 531 F.3d 1347, 1350 (11th Cir.2008) (same); United States v. Williams, 529 F.3d 1, 2, 5-8 (1st Cir.2008) (same); United States v. Papakee, 550 F.Supp.2d 991, 999, 1002 (N.D.Iowa 2008) (same). In addressing these dual" }, { "docid": "4820336", "title": "", "text": "of physical injury to another.” The residual clause in § 4B1.2(a)(2) is identical to language in the Armed Career Criminal Act (ACCA). See 18 U.S.C. § 924(e)(2)(B)(ii). The Supreme Court has recently interpreted that language in the ACCA context, see Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), and its reasoning informs our reading of the guidelines, see Rooks, 556 F.3d at 1150 (“We assume [Begay’s] reasoning applies with equal force to determining whether a predicate offense falls within § 4B1.2(a)(2)’s residual clause,....”). Begay held that the residual clause covers crimes that are “roughly similar, in kind as well as in degree of risk posed,” to the enumerated offenses of burglary, arson, extortion, and crimes involving use of explosives, 128 S.Ct. at 1585, which “all typically involve purposeful, violent, and aggressive conduct,” id. at 1586 (internal quotation marks omitted); see Chambers v. United States, — U.S.-, 129 S.Ct. 687, 692, 172 L.Ed.2d 484 (2009). Larceny from the person is purposeful because it requires “intent to deprive another” of his property. Okla. Stat. Ann. tit. 21, § 1701 (1997). And when the taking is from a person, the conduct is violent and aggressive because it creates a significant risk of confrontation between thief and victim. See Rooks, 556 F.3d at 1151 (“The risk of confrontation [is an] indicator of violent and aggressive conduct”). Our fellow circuits have consistently interpreted the residual clause of § 4B1.2(a)(b) as encompassing larceny from the person. See United States v. De Jesus, 984 F.2d 21, 23-25 (1st Cir.1993); United States v. Smith, 359 F.3d 662, 665-66 (4th Cir.2004); United States v. Hawkins, 69 F.3d 11, 13 (5th Cir.1995); United States v. Payne, 163 F.3d 371, 374-75 (6th Cir.1998); United States v. Howze, 343 F.3d 919, 923-24 (7th Cir.2003); cf. United States v. Thrower, 584 F.3d 70, 73-75 (2d Cir.2009) (interpreting residual clause in ACCA to encompass larceny from the person); United States v. Griffith, 801 F.3d 880, 885 (8th Cir.2002) (same); United States v. Jennings, 515 F.3d 980, 989 (9th Cir.2008) (same). Accordingly, we affirm the district court’s treatment of" }, { "docid": "5130479", "title": "", "text": "dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” § 4B1.2(a)(2). (These definitions are identical to those found in the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B), another basis for increasing a federal defendant’s sentence because of previous convictions, except that the statutory definition leaves out “of a dwelling.”) The crime of which the defendant had been convicted does not fit the first subsection quoted above. The use, etc., of “physical force” is not an element of that crime, since all that that crime requires is proof of making an “insulting or provoking” physical contact with a woman known to be pregnant. The question is whether the defendant’s crime fitted the second subsection (“conduct that presents a serious potential risk of physical injury to another”). The terms “insulting” and “provoking” are taken from the common law tort of battery, which requires only an offensive contact — the sort of thing that might provoke a breach of the peace, as it did here: the provoker was stabbed by his victim. Spitting on a person is the usual example given of a provoking act that amounts to battery. E.g., Alcorn v. Mitchell, 63 Ill. 553 (1872); Cohen v. Smith, 269 Ill.App.3d 1087, 207 Ill.Dec. 873, 648 N.E.2d 329, 331-33 (1995); Caudle v. Betts, 512 So.2d 389, 391-92 (La.1987); see also W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 9, p. 41-42 (5th ed.1984); Restatement (Second) of Torts § 19 and comment a (1965). And so if you deliberately spit on a pregnant woman you are guilty of the crime of aggravated battery in Illinois, People v. Dorn, 378 Ill.App.3d 693, 318 Ill.Dec. 353, 883 N.E.2d 584, 588-89 (2008); People v. Johnson, 347 Ill.App.3d 442, 283 Ill.Dec. 88, 807 N.E.2d 693, 695-97 (2004); People v. Peck, 260 Ill.App.3d 812, 198 Ill.Dec. 760, 633 N.E.2d 222 (1994), even though spitting does not involve “physical force” or inflict bodily harm. Garcia-Meza v. Mukasey, 516 F.3d 535, 537 (7th Cir.2008). To fall under the second" }, { "docid": "5130480", "title": "", "text": "did here: the provoker was stabbed by his victim. Spitting on a person is the usual example given of a provoking act that amounts to battery. E.g., Alcorn v. Mitchell, 63 Ill. 553 (1872); Cohen v. Smith, 269 Ill.App.3d 1087, 207 Ill.Dec. 873, 648 N.E.2d 329, 331-33 (1995); Caudle v. Betts, 512 So.2d 389, 391-92 (La.1987); see also W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 9, p. 41-42 (5th ed.1984); Restatement (Second) of Torts § 19 and comment a (1965). And so if you deliberately spit on a pregnant woman you are guilty of the crime of aggravated battery in Illinois, People v. Dorn, 378 Ill.App.3d 693, 318 Ill.Dec. 353, 883 N.E.2d 584, 588-89 (2008); People v. Johnson, 347 Ill.App.3d 442, 283 Ill.Dec. 88, 807 N.E.2d 693, 695-97 (2004); People v. Peck, 260 Ill.App.3d 812, 198 Ill.Dec. 760, 633 N.E.2d 222 (1994), even though spitting does not involve “physical force” or inflict bodily harm. Garcia-Meza v. Mukasey, 516 F.3d 535, 537 (7th Cir.2008). To fall under the second subsection of section 4131.2(a) of the guidelines, the crime must be similar to the offenses listed in that subsection' — similar, that is, to burglary of a dwelling, arson, extortion, any crime that involves the use of explosives, or any other crime that presents a serious risk of physical injury. Begay v. United States, - U.S. -, -, 128 S.Ct. 1581, 1585, 170 L.Ed.2d 490 (2008); James v. United States, 550 U.S. 192, 203-09, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). Merely careless (even though criminal and dangerous) conduct will not suffice, how-ever. Begay v. United States, supra, 128 S.Ct. at 1586-88; United States v. Woods, 576 F.3d 400, 409-13 (7th Cir.2009). That is not a problem in this case; the Illinois statute requires that the defendant’s “insulting or provoking” physical contact with the victim be intentional or, what amounts to the same thing, knowing. See, e.g., United States v. Holland, 831 F.2d 717, 722-23 (7th Cir.1987). But an “insulting or provoking” physical contact, though intentional, could be no more violent than spitting, and a" } ]

[ { "docid": "12715490", "title": "", "text": "merits. The necessary “level” or “degree” of possibility of success will vary according to the court’s assessment of the other factors. This approach is reflected in the Virginia Petroleum Jobbers opinion at 925, where the court wrote: But injury held insufficient to justify a stay in one case may well be sufficient to justify it in another, where the applicant has demonstrated a higher probability of success on the merits. The view that a 50% plus probability is required by that opinion, although frequently encountered, is thus contrary to both the language and spirit of that opinion. Our holding is generally in accord with the movement in other courts away from a standard incorporating a wooden “probability” requirement and toward an analysis under which the necessary showing on the merits is governed by the balance of equities as revealed through an examination of the other three factors. In a leading case, Judge Frank, speaking for the Second Circuit, stated: To justify a temporary injunction it is not necessary that the plaintiffs right to a final decision, after a trial, be absolutely certain, wholly without doubt; if the other elements are present (i. e., the balance of hardships tips decidedly toward plaintiff), it will ordinarily be enough that the plaintiff has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them a fair ground for litigation and thus for more deliberative investigation. Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2d Cir. 1953) (footnote omitted). More recently, the same court declared: One moving for a preliminary injunction assumes the burden of demonstrating either a combination of probable success and the possibility of irreparable injury or that serious questions are raised and the balance of hardships tips sharply in his favor. Charlie’s Girls, Inc. v. Revlon, Inc., 483 F.2d 953, 954 (2d Cir. 1973) (per curiam). To the same effect, see also Costandi v. AAMCO Automatic Transmissions, Inc., 456 F.2d 941 (9th Cir. 1972). We believe that this approach is entirely consistent with the purpose of granting interim injunctive relief, whether by preliminary" } ]

[ { "docid": "7144220", "title": "", "text": "on the merits when a serious legal question is involved and show that the balance of the equities weighs heavily in favor of granting the stay.” Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir.1981) (Ruiz I). The court further noted that the stay procedure of ... Fed.R.App.P. 8(a) affords interim relief where relative harm and the uncertainty of final disposition justify it. Of course, if the balance of equities (i.e., consideration of the other three factors) is not heavily tilted in the movant’s favor, the movant must then make a more substantial showing of likelihood of success on the merits in order to obtain a stay pending appeal. Ruiz I, 650 F.2d at 565-66. We thus note that in order to grant a stay or injunction pending appeal, a panel of this court is not necessarily required to make the same determinations that a district judge must make in order to grant a preliminary injunction. Since a movant need not, in every instance, show that he will probably succeed on the merits as per our discussion of Ruiz I supra, we find that Doe v. Marshall is distinguishable and does not control the outcome of this case as Laurenzo contends. The circumstances of the ease sub judice dictate a different result from that reached in Doe v. Marshall. This was an ex parte motion granted without notice and without an opportunity for the defendants to respond, by an emergency panel of this court without written opinion. Another panel of this court rejected the same argument presented here and denied interim attorney’s fees. There was no finding that the injunction was granted on the basis of likelihood of prevailing. Laurenzo fit into the unusual situation discussed in Ruiz I and Ruiz II wherein, as the later panel in Laurenzo I found, he had presented a substantial case at least on the issue of jurisdiction, see supra note 6, and the balance of equities weighed heavily in his favor. Depriving Laurenzo of playing baseball would have irreparably harmed him while allowing him to play baseball would not substantially harm MHSAA and" }, { "docid": "23148809", "title": "", "text": "well-established in this circuit as to be a rubric, these criteria are: (1) whether the movant has made a showing of likelihood of success on the merits, (2) whether the movant has made a showing of irreparable injury if the stay is not granted, (3) whether the granting of the stay would substantially harm the other parties, and (4) whether the granting of the stay would serve the public interest. Ruiz I, 650 F.2d at 565 (citing cases). The' party who seeks a stay bears the burden of establishing these prerequisites. Drummond v. Fulton County Dep’t of Family & Children’s Servs., 532 F.2d 1001, 1002 (5th Cir. 1976) (per curiam); see Dendy v. Washington Hosp. Center, 581 F.2d 990, 992 (D.C.Cir.1978) (per curiam); Long v. Robinson, 432 F.2d 977, 979 (4th Cir. 1970) (order by Winter, J.). In granting the stay in Ruiz I, we held that “on motions for stay pending appeal the movant need not always show a ‘probability’ of success on the merits; instead, the movant need only present a substantial case on the merits when a serious legal question is involved and show that the balance of the equities weighs heavily in favor of granting the stay.” 650 F.2d at 565 (emphasis added). In the short time that has elapsed since Ruiz I, many applicants for stay seem to have assumed that Ruiz I was a coup de grace for the likelihood-of-success criterion in this circuit. This assumption, however, is unwarranted, for it ignores the careful language of Ruiz I. Likelihood of success remains a prerequisite in the usual case even if it is not an invariable requirement. Only “if the balance of equities (i.e. consideration of the other three factors) is ... heavily tilted in the movant’s favor” will we issue a stay in its absence, and, even then, the issue must be one with patent substantial merit. Id. at 565 — 66 (emphasis added). Guided by these considerations, we consider the State’s present motion. In acting on it, whether favorably or unfavorably, we intimate no predetermination of the decision on the merits with regard" }, { "docid": "1819779", "title": "", "text": "actions. The Defendants seek a stay of enforcement of the judgment. Conclusions of Law on Motions for Stay Pending Appeal. A motion for stay pending appeal is an extraordinary remedy and requires a substantial showing on the part of the movant. In re Running, 1990 WL 53063 (N.D.Ill.). F.R.B.P. 8005 provides that the movant must first seek such relief in the bankruptcy court. In determining a motion for stay pending appeal, the court must consider four factors. “These factors are (1) whether the movant has made a showing of likelihood of success on the merits, (2) whether the movant has made a showing of irreparable injury if the stay is not granted, (3) whether the granting of the stay would substantially harm the other parties, and (4) whether the granting of the stay would serve the public interest.” Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir.1981). See also In re Brown, 290 B.R. 415, 424 (Bankr.M.D.Fla.2003); In re Bilzerian, 264 B.R. 726, 729 (Bankr.M.D.Fla.2001). The movant must show “satisfactory evidence on all four criteria, and the failure to satisfy one prong is fatal to the motion.” Brown, 290 B.R. at 424. The movant bears the burden of persuasion by a preponderance of the evidence. Rossi, McCreery & Assoc., Inc. v. Abbo (In re Abbo), 191 B.R. 680, 682 (Bankr.N.D.Ohio 1996). A. Likelihood of Success on the Merits. A showing that the movant has a likelihood of success on the merits is a prerequisite to the granting of a stay pending appeal. In re Permian Producers Drilling, Inc., 263 B.R. 510, 515 (W.D.Tex.2000). A “likelihood of success is shown when the [movant] has raised ‘questions going to the merits so serious, substantial, difficult and doubtful as to make them a fair ground for litigation and thus for more deliberate inquiry.’ ” Colorado Public Utilities Comm. v. Yellow Cab Cooperative Ass’n (In re Yellow Cab Cooperative Ass’n), 192 B.R. 555, 557 (D.Co.1996), quoting United States ex rel. Citizen Band Potawatomi Indian Tribe v. Enterprise Management Consultants, Inc., 883 F.2d 886, 889 (10th Cir.1989). The Defendants have raised eight issues on appeal" }, { "docid": "23498400", "title": "", "text": "573). n2. n2. The Act does not address the traditional requirements for temporary-injunctive relief. Accordingly, these standards control whether temporary in-junctive relief is warranted, notwithstanding Congress’ intent that the federal courts determine de novo the merits of Theresa Schiavo’s claimed constitutional deprivations. It is apparent that Theresa Schiavo will die unless temporary injunctive relief is granted. This circumstance satisfies the requirement of irreparable injury. Moreover, that threatened injury outweighs any harm the proposed injunction would cause. To the extent Defendants urge that Theresa Schiavo would be harmed by the invasive procedure reinserting the feeding tube, this court finds [*7] that death outweighs any such harm. Finally, the court is satisfied that an injunction would not be adverse to the public interest. Notwithstanding these findings, it is essential that Plaintiffs establish a substantial likelihood of success on the merits, which the court finds they have not done. The first of the four prerequisites to temporary injunctive relief is generally the most important. Gonzalez v. Reno, No. 00-11424-D, 2000 WL 381901 at *1 (11th Cir. April 19, 2000). The necessary level or degree of possibility of success on the merits will vary according to the court’s assessment of the other factors. Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir.1981) (citing with auth. Washington Metro. Area Transit Comm’n v. Holiday Tours, Inc., 182 U.S.App. D.C. 220, 559 F.2d 841, 843 (D.C.Cir.1977)). A substantial likelihood of success on the merits requires a showing of only likely or probable, rather than certain, success. Home Oil Company, Inc. v. Sam’s East, Inc., 199 F.Supp.2d 1236, 1249 (M.D.Ala.2002) (emphasis in original); see also Ruiz, 650 F.2d at 565. “Where the ‘balance [*8] of the equities weighs heavily in favor of granting the [injunction],’ the movant need only show a ‘substantial case on the merits.’ ” Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11th Cir.1986) (citing Ruiz, 650 F.2d at 565). This court has carefully considered the Act and is mindful of Congress’ intent that Plaintiffs have an opportunity to litigate any deprivation of Theresa Schiavo’s federal rights. The Court is likewise mindful of Congress’ directive that" }, { "docid": "17347646", "title": "", "text": "to Fed.R.Civ.P. 62(c), moves for a stay of the declaratory judgment to be entered which would allow the existing regulatory scheme to remain in effect during the pendency of its appeal. The ABCC neither intends to appeal nor requests a stay pending the MWMBI’s appeal. Plaintiffs oppose the motion for a stay. The ABCC has expressed no view on whether a stay would be in the public interest. See State Defendants’ Response to Court’s February 18,1998 Order. The Supreme Court has stated that the factors regulating the issuance of a stay pending appeal “are generally the same” for a district court and for a court of appeals. Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987). These factors are: (1) whether the stay .applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Id. The first prong of this test has not been interpreted or applied literally, even by the Courts of Appeals. Rather, it has been held that: on motions for stay pending appeal the movant need not always show a “probability” of success on the merits; instead, the movant need only present a substantial case on the merits when a serious legal question is involved .and show that the balance of the equities weighs heavily in favor of granting the stay. Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir. 1981) (citing Providence Journal Co. v. Federal Bureau of Investigation, 595 F.2d 889, 890 (1st Cir.1979) (“Where ... the denial of a stay will utterly destroy the status quo, irreparably harming appellants,, but the granting of a stay will cause relatively slight harm to appellee, appellants need not show an absolute probability of success in order to be entitled to a stay.”)). See also Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11th Cir.1986); 11 Wright, Miller & Kane, Federal Practice and Procedure § 2904," }, { "docid": "10213536", "title": "", "text": "Part IV infra) to enter a stay of the bankruptcy court’s Super Priority Financing Order pending appeal and requiring the district court to hold a prompt hearing on the merits of that appeal. II. In its petition for writ of mandamus, First South argues that no other avenue of appeal is available to it and that the harm to First South would be irreparable if a stay pending appeal is not entered. First South contends that, without the issuance of the requested relief, it would lose its ability to prosecute an appeal to the district court because, under 11 U.S.C. § 364(e), such an appeal might be rendered moot. Moreover, argues First South, based on the applicable legal standards, the district court, and the bankruptcy court before that, abused their discretion in denying its motion for a stay pending appeal. First South points to the criteria applied to determine whether a stay pending appeal should issue: (1) Whether the movant has made a showing of likelihood of success on the merits; (2) Whether the movant has made a showing of irreparable injury if the stay is not granted; (3) Whether the granting of the stay would substantially harm the other parties; and (4)Whether the granting of the stay would serve the public interest. See, e.g., Ruiz v. Estelle, 666 F.2d 854, 856 (5th Cir.1982) (“Ruiz IP’). Further, First South notes that this court has recognized that “the movant need not always show a ‘probability’ of success on the merits; instead, the movant need only present a substantial case on the merits when a serious legal question is involved and show that the balance of the equities weighs heavily in favor of granting the stay.” Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir. Unit A Jun. 1981) (“Ruiz I”). First South then undertakes to show that, in light of those criteria, the denial of a stay pending appeal constitutes an abuse of discretion. With respect to its “likelihood of success on the merits,” First South notes the requirements of section 364(d)(1) — that the trustee is unable to obtain credit" }, { "docid": "3539283", "title": "", "text": "Brotherhood of Ry. & S.S. Clerks, Freight Handlers, Express and Station Employees v. National Mediation Bd., 374 F.2d 269, 275 (D.C.Cir.1966). Therefore, unless the last three factors are heavily weighted in plaintiff’s favor, it must make a more substantial showing of the likelihood of success on the merits. Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir.1981), cert. denied, - U.S. -, 103 S.Ct. 1438, 75 L.Ed.2d 795 (1983). As the discussion above indicates, these last three factors are not heavily weighted in plaintiff’s favor. On balance these three factors are tilted only slightly in plaintiff’s favor. The final two factors in favor of denying the appeal are only slightly outweighed by the fact that plaintiff will suffer some injury as a result of losing this jet fuel contract. However, when the first factor is introduced into the equation, the result clearly favors a denial of plaintiff’s motion. Plaintiff has plainly failed to make a substantial showing of likelihood of success on appeal. In fact, the record before this court indicates that such success is most improbable. The basic pur pose of relief pending appeal is to provide “interim relief where relative harm and the uncertainty of final disposition justify it.” Ruiz v. Estelle, supra, 650 F.2d at 565. In this case, there exists only a modicum of relative harm and little uncertainty of final disposition. It is concluded therefore that injunctive relief pending appeal is not proper in this case. Therefore, plaintiff’s motion for a stay pending appeal is denied. . The court in its February 22, 1984, opinion also concluded that the essence of plaintiffs complaint was a post-award claim, i.e., termination of an existing contract and thus beyond the jurisdiction of the court, citing United States v. John C. Grimberg Co., 702 F.2d 1362, 1374 (Fed.Cir.1983) (en banc). Plaintiff now maintains that under the Contract Disputes Act, injunctive relief is appropriate where the government unlawfully terminated a prior contract citing Vibra-Tech Eng’rs, Inc. v. United States, 567 F.Supp. 484 (D.Colo.1983). This court’s injunctive authority does not arise from the Contract Disputes Act and, more importantly, Vibra-Tech is" }, { "docid": "10213579", "title": "", "text": "in this proceeding and any potential reorganization.\" Memorandum in Support of Petition for Writ of Mandamus, or in the Alternative Motion for Stay Pending Appeal at 27. . First South, in its mandamus petition, allows that \"this Court may condition the granting of a stay pending appeal on First South committing to fund the $2 million on the same terms and conditions as set forth in the loan commitment\" if the Fifth Circuit affirms the bankruptcy court’s order approving the super priority financing. Mandamus Petition at 21. . Additionally, we rejected the appellant’s request that we grant a stay under Federal Rule of Appellate Procedure 8(a) because the rule, only authorizing stays pending appeal to this court, did not apply where, as there, no appeal was pending from the district court to this court. See Barrier, 776 F.2d at 1299. . In Ruiz I, 650 F.2d 555 (5th Cir.1981), we stated that \"on motions for stay pending appeal the movant need not always show a ‘probability1 of success on the merits; instead, the movant need only present a substantial case on the merits when a serious legal question is involved and show that the balance of the equities weighs heavily in favor of granting the stay.” Id. at 565. In Ruiz II, 666 F.2d 854 (5th Cir.1982), we cautioned against reading Ruiz I as \"a coup de grace for the likelihood-of-success criterion in this circuit.” Id. at 856. We said: \"Likelihood of success remains a prerequisite in the usual case even if it is not an invariable requirement. Only ‘if the balance of equities (i.e. consideration of the other three factors) is ... heavily tilted in the movant's favor’ will we issue a stay in its absence, and, even then, the issue must be one with patent substantial merit.” Id at 857 (quoting Ruiz I, 650 F.2d at 565-66) (emphasis added by Ruiz II court). Since we believe that the more stringent likelihood ..of success on the merits standard is satisfied here, we need not decide if this is an \"unusual\" case such as to warrant a stay in the" }, { "docid": "23498431", "title": "", "text": "that the balance of the equities weighs heavily in favor of granting the [preliminary injunction].” Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir.1981) (per curiam); see Gonzalez v. Reno, No. 00-11424-D, 2000 WL 381901 at *1 (11th Cir. Apr. 19, 2000); United States v. Hamilton, 963 F.2d 322, 323 (11th Cir.1992); Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11th Cir.1986). The review “require[s] a delicate balancing of the probabilities of ultimate success at final hearing with the consequences of immediate irreparable injury which could possibly flow from the denial of preliminary relief.” Siegel v. LePore, 234 F.3d 1163, 1178 (11th Cir.2000) (en banc). As we stated in Gonzalez, “where the balance of the equities weighs heavily in favor of granting the [injunction], the mov-ant need only show a substantial case on the merits.” Gonzalez, 2000 WL 381901 at *1 (internal citations omitted) (alteration in original). In this case, the balance of the equities weighs heavily in favor of granting the injunction. We determine the balance of the equities by examining the three final factors required to grant a preliminary injunction. Garcia-Mir, 781 F.2d at 1453. “A showing of irreparable harm is the sine qua non of injunctive relief.” Northeastern Fla. Chapter of the Ass’n of Gen. Contractors of Am. v. City of Jacksonville, 896 F.2d 1283, 1285 (11th Cir.1990) (citation and internal quotation omitted). Here, the immediate irreparable injury is not only possible, it is imminent. I am aware of no injury more irreparable than death. Clearly, the threatened injury of death outweighs any harm the proposed injunction may cause, i.e. reinserting the feeding tube. In fact, I fail to see any harm in reinstating the feeding tube. On the other hand, a denial of the request for injunction will result in the death of Theresa Schiavo. Finally, an injunction in this ease clearly would not be adverse to public interest, thus satisfying the fourth and final criteria necessary to grant a preliminary injunction. Upon reviewing these three factors, it is obvious that the equities weigh heavily in favor of granting the injunction. . I now consider the first" }, { "docid": "23148808", "title": "", "text": "ALVIN B. RUBIN, Circuit Judge: The State of Texas for the second time asks us to stay some of the provisions of the injunctive decree rendered by the district court. The decree requires the Texas Department of Corrections (“TDC”) to make numerous changes in its prisons and their administration. In Ruiz v. Estelle, 650 F.2d 555 (5th Cir. 1981) (per curiam) (Ruiz I), we granted a stay of some provisions of the decree. The State then requested a stay of other provisions of the decree, first in the district court and then by appeal from the district court’s refusal to grant the requested relief. We provisionally granted the stay requested in the second motion so that we could fully consider the briefs and hear oral argument. As in Ruiz I, we act separately on each of the specific issues presented; we grant the motion in part and deny it in part. I In Ruiz I, we reviewed the criteria to be applied in determining whether an appellate court should stay an injunction pending appeal. So well-established in this circuit as to be a rubric, these criteria are: (1) whether the movant has made a showing of likelihood of success on the merits, (2) whether the movant has made a showing of irreparable injury if the stay is not granted, (3) whether the granting of the stay would substantially harm the other parties, and (4) whether the granting of the stay would serve the public interest. Ruiz I, 650 F.2d at 565 (citing cases). The' party who seeks a stay bears the burden of establishing these prerequisites. Drummond v. Fulton County Dep’t of Family & Children’s Servs., 532 F.2d 1001, 1002 (5th Cir. 1976) (per curiam); see Dendy v. Washington Hosp. Center, 581 F.2d 990, 992 (D.C.Cir.1978) (per curiam); Long v. Robinson, 432 F.2d 977, 979 (4th Cir. 1970) (order by Winter, J.). In granting the stay in Ruiz I, we held that “on motions for stay pending appeal the movant need not always show a ‘probability’ of success on the merits; instead, the movant need only present a substantial case" }, { "docid": "23498399", "title": "", "text": "against irreparable injury and preserve the status quo until the district court renders a meaningful decision on the merits. Canal Auth. of State of Florida v. Callaway, 489 F.2d 567, 572 (5th Cir.1974). A district court may grant a preliminary injunction only if the moving party shows that: (1) it has a substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest. Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1097 (11th Cir.2004); Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1265 (11th Cir.2001). A preliminary injunction is “an extraordinary [*6] and drastic remedy” and is “not to be granted unless the movant ‘clearly established the burden of persuasion’ as to the four prerequisites.” United States v. Jefferson County, 720 F.2d 1511, 1519 (11th Cir.1983) (quoting Canal Auth. of State of Florida, 489 F.2d at 573). n2. n2. The Act does not address the traditional requirements for temporary-injunctive relief. Accordingly, these standards control whether temporary in-junctive relief is warranted, notwithstanding Congress’ intent that the federal courts determine de novo the merits of Theresa Schiavo’s claimed constitutional deprivations. It is apparent that Theresa Schiavo will die unless temporary injunctive relief is granted. This circumstance satisfies the requirement of irreparable injury. Moreover, that threatened injury outweighs any harm the proposed injunction would cause. To the extent Defendants urge that Theresa Schiavo would be harmed by the invasive procedure reinserting the feeding tube, this court finds [*7] that death outweighs any such harm. Finally, the court is satisfied that an injunction would not be adverse to the public interest. Notwithstanding these findings, it is essential that Plaintiffs establish a substantial likelihood of success on the merits, which the court finds they have not done. The first of the four prerequisites to temporary injunctive relief is generally the most important. Gonzalez v. Reno, No. 00-11424-D, 2000 WL 381901 at *1 (11th Cir. April 19," }, { "docid": "7144219", "title": "", "text": "determination of mootness [by the appellate court] does not prevent an award of attorneys’ fees on remand,” determined that the district court’s grant of a preliminary injunction made the plaintiff a prevailing party, and remanded for a determination of an appropriate attorney’s fee. Doe, 622 F.2d at 120. Although the emergency panel here gave no indication of its reasons for granting the injunction pending appeal, Laurenzo ar gues that under Fed.R.App.P. 8 the panel was required to make the same determinations as would a district court before granting a preliminary injunction. For this proposition, Laurenzo cites Florida Businessmen for Free Enterprise v. City of Hollywood, 648 F.2d 956 (5th Cir.1981). A later case in this circuit, however, noted, even though it had been “a widely held view,” as in Florida Businessmen, that a stay pending appeal could never be granted unless the movant had shown that success on appeal was probable, that nevertheless “the movant need not always show a ‘probability of success’ on the merits; instead, the movant need only present a substantial case on the merits when a serious legal question is involved and show that the balance of the equities weighs heavily in favor of granting the stay.” Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir.1981) (Ruiz I). The court further noted that the stay procedure of ... Fed.R.App.P. 8(a) affords interim relief where relative harm and the uncertainty of final disposition justify it. Of course, if the balance of equities (i.e., consideration of the other three factors) is not heavily tilted in the movant’s favor, the movant must then make a more substantial showing of likelihood of success on the merits in order to obtain a stay pending appeal. Ruiz I, 650 F.2d at 565-66. We thus note that in order to grant a stay or injunction pending appeal, a panel of this court is not necessarily required to make the same determinations that a district judge must make in order to grant a preliminary injunction. Since a movant need not, in every instance, show that he will probably succeed on the merits as per" }, { "docid": "10213537", "title": "", "text": "has made a showing of irreparable injury if the stay is not granted; (3) Whether the granting of the stay would substantially harm the other parties; and (4)Whether the granting of the stay would serve the public interest. See, e.g., Ruiz v. Estelle, 666 F.2d 854, 856 (5th Cir.1982) (“Ruiz IP’). Further, First South notes that this court has recognized that “the movant need not always show a ‘probability’ of success on the merits; instead, the movant need only present a substantial case on the merits when a serious legal question is involved and show that the balance of the equities weighs heavily in favor of granting the stay.” Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir. Unit A Jun. 1981) (“Ruiz I”). First South then undertakes to show that, in light of those criteria, the denial of a stay pending appeal constitutes an abuse of discretion. With respect to its “likelihood of success on the merits,” First South notes the requirements of section 364(d)(1) — that the trustee is unable to obtain credit otherwise and that there is adequate protection of the interest of the holder of the lien that will be subordinated — -and contends that the debtor has not met these statutory requirements. Thus, according to First South, its likelihood of succeeding on the merits is great. With respect to “irreparable injury,” First South argues that section 364(e) specifically states that the reversal or modification on appeal of an authorization to obtain credit does not affect the validity of any debts incurred, or any priority or liens so granted, unless the authorizing and incurring of such debt or the granting of such prior lien is stayed pending appeal. Under the statute, absent a stay pending appeal, even if First South succeeded in having the Super Priority Financing Order modified or reversed, any such modification or reversal would not affect First Bank & Trust, Groves’s super priority position if the loan was made in good faith with proper notice. Due to the express provisions of the Bankruptcy Code, then, the harm to First South would be irreparable." }, { "docid": "23498432", "title": "", "text": "required to grant a preliminary injunction. Garcia-Mir, 781 F.2d at 1453. “A showing of irreparable harm is the sine qua non of injunctive relief.” Northeastern Fla. Chapter of the Ass’n of Gen. Contractors of Am. v. City of Jacksonville, 896 F.2d 1283, 1285 (11th Cir.1990) (citation and internal quotation omitted). Here, the immediate irreparable injury is not only possible, it is imminent. I am aware of no injury more irreparable than death. Clearly, the threatened injury of death outweighs any harm the proposed injunction may cause, i.e. reinserting the feeding tube. In fact, I fail to see any harm in reinstating the feeding tube. On the other hand, a denial of the request for injunction will result in the death of Theresa Schiavo. Finally, an injunction in this ease clearly would not be adverse to public interest, thus satisfying the fourth and final criteria necessary to grant a preliminary injunction. Upon reviewing these three factors, it is obvious that the equities weigh heavily in favor of granting the injunction. . I now consider the first prong, whether Plaintiffs presented a substantial case on the merits. In the complaint, Plaintiffs claim that Theresa Schiavo’s Fourteenth Amendment due process rights were violated in that she was not provided a fair and impartial trial, she was not given adequate procedural due process, and she was not afforded equal protection of the laws. Further, Plaintiffs contend that Theresa Schiavo’s First Amendment freedom to exercise her religion has been burdened by the state court’s order to remove the feeding tube. Plaintiffs also allege a violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1(a). The establishment of a “substantial likelihood for success on the merits” is a heavy burden, but not an insurmountable one. A movant need not establish that he can hit a home run, only that he can get on base, with a possibility of scoring later. In fact, our circuit jurisprudence establishes that the movant need not establish a “probability” of success, taking all things into consideration. The merits of Plaintiffs’ substantial claims warrant a more complete" }, { "docid": "5499905", "title": "", "text": "and permanent injunctive relief and for a stay of execution, and also denied O’Bryan’s application for temporary relief pending appeal. Pending before us in connection with the 1983 Complaint is a motion to enjoin the 1983 defendants from subjecting O’Bryan to lethal injection with drugs not approved for that purpose by the FDA during the pendency of O’Bryan’s appeal from the district court’s judgment. We turn first to the 1983 Complaint. In general, a court, in deciding whether to issue a stay, must consider: (1) whether the movant has made a showing of likelihood of success on the merits, (2) whether the movant has made a showing of irreparable injury if the stay is not granted, (3) whether the granting of the stay would substantially harm the other parties, and (4) whether the granting of the stay would serve the public interest. Ruiz v. Estelle, 666 F.2d 854, 856 (5th Cir.1982) (Ruiz II) (quoting Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir.1981) (Ruiz I)). While “the movant need not always show a ‘probability’ of success on the merits,” he must “present a substantial case on the merits when a serious legal question is involved and show that the balance of the equities, [i.e. the other three factors] weighs heavily in the favor of granting the stay.” Ruiz II, 666 F.2d at 856 (emphasis in original) (quoting Ruiz I, 650 F.2d at 565). Insofar as the likelihood of success on the merits is concerned, we do not think that O’Bryan has made the showing required for a stay. We begin by noting that the mandate in Chaney v. Heckler, supra, has not issued, having been stayed by Chief Justice Burger pending the government’s application for a writ of certiorari in the Supreme Court. We note also that neither this court nor any party to this case is bound by the decision of the Court of Appeals for the District of Columbia Circuit in Chaney. On the probable merits of O’Bryan’s claim of a violation of the Act, we think that, for the reasons set forth in Judge Scalia’s dissenting opinion" }, { "docid": "23498430", "title": "", "text": "the merits; (2) irreparable injury if the injunction is not issued; (3) threatened injury to the movant outweighs the potential damage that the proposed injunction may cause the defendants; and (4) the injunction will not be adverse to the public interest. See All Care Nursing Serv., Inc. v. Bethesda Mem’l Hosp., Inc., 887 F.2d 1535, 1537 (11th Cir.1989) (citation omitted). The issuance of an injunction is an extraordinary remedy, and the moving party “bears the burden to clearly establish the four prerequisites.” Cafe 207, Inc. v. St. Johns County, 989 F.2d 1136, 1137 (11th Cir.1993). It is clear from our cases that proof of a substantial likelihood of success on the merits is an indispensable prerequisite to a preliminary injunction. All Care Nursing Serv., 887 F.2d at 1537. However, the movant must demonstrate a “substantial likelihood,” not a substantial certainty. To require more undermines the purpose of even considering the other three prerequisites. Thus, instead, “the movant need only present a substantial case on the merits when a serious legal question is involved and show that the balance of the equities weighs heavily in favor of granting the [preliminary injunction].” Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir.1981) (per curiam); see Gonzalez v. Reno, No. 00-11424-D, 2000 WL 381901 at *1 (11th Cir. Apr. 19, 2000); United States v. Hamilton, 963 F.2d 322, 323 (11th Cir.1992); Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11th Cir.1986). The review “require[s] a delicate balancing of the probabilities of ultimate success at final hearing with the consequences of immediate irreparable injury which could possibly flow from the denial of preliminary relief.” Siegel v. LePore, 234 F.3d 1163, 1178 (11th Cir.2000) (en banc). As we stated in Gonzalez, “where the balance of the equities weighs heavily in favor of granting the [injunction], the mov-ant need only show a substantial case on the merits.” Gonzalez, 2000 WL 381901 at *1 (internal citations omitted) (alteration in original). In this case, the balance of the equities weighs heavily in favor of granting the injunction. We determine the balance of the equities by examining the three final factors" }, { "docid": "1118092", "title": "", "text": "debtor in possession, pending the Bankruptcy Court’s confirmation of the plan. Under the plan, the debtor has been making monthly protection payments of $60,000 to the secured creditor, 1740 Ventures, Inc. The secured debt currently totals over $8,000,000. More than two years of real estate taxes are unpaid. The unsecured debt is approximately $250,000. Legal Analysis In considering whether a stay pending appeal should issue, the Court must apply four criteria: (1) Whether the movant has made a showing of likelihood of success on the merits; (2) Whether the movant has made a showing of irreparable injury if the stay is not granted; (3) Whether the granting of the stay would substantially harm the other parties; and (4) Whether the granting of the stay would serve the public interest. In Re First South Savings Ass’n, 820 F.2d 700, 704 (5th Cir.1987). Under the first element, the movant “need only present a substantial case on the merits when a serious legal question is involved and show that the balance of the equities weighs heavily in favor of granting the stay.” Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir. Unit A, 1981). The debtor maintains that a serious legal question exists because the courts apply inconsistent standards for determining bad faith. The debtor describes several tests used to identify bad faith bankruptcy filings. These tests employ either a subjective bad faith standard, an objective futility standard, or some hybrid standard. Specifically, the debtor argues that the Bankruptcy Court’s dismissal is questionable under In re Albany Partners, 749 F.2d 670 (11th Cir.1984), in which the Court considered both the debtor’s subjective intent and the futility of the reorganization. This combination of factors, asserts the debtor, is used by a number of other circuit courts and bankruptcy courts. Thus, the debtor maintains that the issue of bad faith raises a serious legal question for appeal. However, the debtor mistakes the standard. The Eleventh Circuit has more recently ruled that “the prospects of a successful reorganization do not override, as a matter of law, the finding of bad faith ... or compel, as a" }, { "docid": "23157697", "title": "", "text": "and file its plan. Because the precise remedy sought here was denied below, this motion is properly filed under Fed.R.App.P. 8(a). Our standard of review in cases of this sort is well-settled. We must always be diffident in interposing the power of an appellate court into the province of the trial court and its orders save upon full briefing and mature reflection by this Court. The grant of an emergency motion to stay the trial court’s mandate is thus an exceptional response granted only upon a showing of four factors: 1) that the movant is likely to prevail on the merits on appeal; 2) that absent a stay the movant will suffer irreparable damage; 3) that the adverse party will suffer no substantial harm from the issuance of the stay; and 4) that the public interest will be served by issuing the stay. Jean v. Nelson, 683 F.2d 1311, 1312 (11th Cir.1982) (per curiam), see also, 11th Cir.R. 17(b)(1). Ordinarily the first factor is the most important. A finding that the mov-ant demonstrates a probable likelihood of success on the merits on appeal requires that we determine that the trial court below was clearly erroneous. In re Grand Jury Proceedings, 689 F.2d 1351, 1353 (11th Cir.1982) (per curiam). But the movant may also have his motion granted upon a lesser showing of a “substantial case on the merits” when “the balance of the equities [identified in factors 2, 3, and 4] weighs heavily in favor of granting the stay.” Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir.1981) (per curiam), cert. denied, 460 U.S. 1042, 103 S.Ct. 1438, 75 L.Ed.2d 795 (1983). 1. The Likelihood of Success on Appeal. The respondents here are “excludable aliens.” In the eyes of the law they have not yet entered the country but are merely “on the threshold of initial entry.” Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212, 73 S.Ct. 625, 629, 97 L.Ed. 956 (1953). “As to such persons, the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law.” Nishimura" }, { "docid": "17347647", "title": "", "text": "interest lies. Id. The first prong of this test has not been interpreted or applied literally, even by the Courts of Appeals. Rather, it has been held that: on motions for stay pending appeal the movant need not always show a “probability” of success on the merits; instead, the movant need only present a substantial case on the merits when a serious legal question is involved .and show that the balance of the equities weighs heavily in favor of granting the stay. Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir. 1981) (citing Providence Journal Co. v. Federal Bureau of Investigation, 595 F.2d 889, 890 (1st Cir.1979) (“Where ... the denial of a stay will utterly destroy the status quo, irreparably harming appellants,, but the granting of a stay will cause relatively slight harm to appellee, appellants need not show an absolute probability of success in order to be entitled to a stay.”)). See also Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11th Cir.1986); 11 Wright, Miller & Kane, Federal Practice and Procedure § 2904, at 503 & n. 11 (2d ed. 1995 & Supp.1997). When the request for a stay is made to a district court, common sense dictates that the moving party need not persuade the court that it is likely to be reversed on appeal. Rather, with regard to the first prong of the Hilton test, the movant must only establish that the appeal raises-serious and difficult questions of law in an area where the law is somewhat unclear. See Exxon Corp. v. Esso Worker’s Union, Inc., 963 F.Supp. 58, 60 (D.Mass.1997); Gay Lesbian Bisexual Alliance v. Sessions, 917 F.Supp. 1558, 1561 (M.D.Ala.1996); Mamula v. Satralloy, Inc., 578 F.Supp. 563, 580 (S.D.Ohio 1983); Evans v. Buchanan, 435 F.Supp. 832, 844 (D.Del. 1977). This case involves a sufficiently serious issue of law to satisfy the threshold requirement for a stay. The operation of the other Hilton factors, however, persuades the court that a stay pending appeal is not justified. More specifically, there are only two reported Court of Appeals decisions addressing regulatory schemes for wholesale liquor pricing similar" }, { "docid": "23498401", "title": "", "text": "2000). The necessary level or degree of possibility of success on the merits will vary according to the court’s assessment of the other factors. Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir.1981) (citing with auth. Washington Metro. Area Transit Comm’n v. Holiday Tours, Inc., 182 U.S.App. D.C. 220, 559 F.2d 841, 843 (D.C.Cir.1977)). A substantial likelihood of success on the merits requires a showing of only likely or probable, rather than certain, success. Home Oil Company, Inc. v. Sam’s East, Inc., 199 F.Supp.2d 1236, 1249 (M.D.Ala.2002) (emphasis in original); see also Ruiz, 650 F.2d at 565. “Where the ‘balance [*8] of the equities weighs heavily in favor of granting the [injunction],’ the movant need only show a ‘substantial case on the merits.’ ” Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11th Cir.1986) (citing Ruiz, 650 F.2d at 565). This court has carefully considered the Act and is mindful of Congress’ intent that Plaintiffs have an opportunity to litigate any deprivation of Theresa Schiavo’s federal rights. The Court is likewise mindful of Congress’ directive that a de novo determination be made “notwithstanding any prior State court determination.” In resolving Plaintiffs’ Motion for Temporary Restraining Order, however, the court is limited to a consideration of the constitutional and statutory deprivations alleged by Plaintiffs in their Complaint and motion. Because Plaintiffs urge due process violations are premised primarily on the procedures followed and orders entered by Judge Greer in his official capacity as the presiding judge in the dispute between Michael Schiavo and Plaintiffs, their Complaint necessarily requires a consideration of the procedural history of the state court case to determine whether there is a showing of any due process [*9] violations. On the face of these pleadings, Plaintiffs have asserted five constitutional and statutory claims. To obtain temporary injunctive relief, they must show a substantial likelihood of success on at least one claim. n3. n3. Plaintiffs have submitted affidavits of health care professionals regarding Theresa’s medical status, treatment techniques and therapies which are available and their opinions regarding how and whether these treatments might improve Theresa’s condition. Plaintiffs have not, however," } ]

[ { "docid": "21081687", "title": "", "text": "court affirmed. II. Before we reach the merits, we must ascertain, first, whether the trustee in bankruptcy had standing to bring the action below, and second, whether the bankruptcy court had jurisdiction over the case. First, characterizing the trustee’s suit as an alter ego action, Constellation contends that In re Ozark Restaurant Equip. Co., Inc., 816 F.2d 1222 (8th Cir.), cert. denied sub nom. Jacoway v. Anderson, 484 U.S. 848, 108 S.Ct. 147, 98 L.Ed.2d 102 (1987), deprives the trustee of standing to pursue this ease in the first instance. In Ozark, this court held that the Bankruptcy Code did not give a Chapter 7 trustee standing to bring an action on behalf of the debtor corporation’s creditors. Our analysis rested primarily on the Supreme Court’s construction of the statutory provisions governing trustees in Caplin v. Marine Midland Grace Trust Co., 406 U.S. 416, 92 S.Ct. 1678, 32 L.Ed.2d 195 (1972), and on Congress’s failure to override Caplin when it overhauled the bankruptcy laws in 1978. Ozark, 816 F.2d at 1228; but see Koch Refining v. Farmers Union Cent. Exch., Inc., 831 F.2d 1339, 1347 n. 11 (7th Cir.1987), cert. denied. 485 U.S. 906, 108 S.Ct. 1077, 99 L.Ed.2d 237 (1988) (holding that failure of Congress to adopt bill overruling Caplin “does not affect a trustee’s right to bring a general action on behalf of all creditors rather than a personal one on behalf of only some”). We concluded that “Congress’s message is clear — no trustee, whether a reorganization trustee as in Caplin or a liquidation trustee ... has power under Section 544 of the Code to assert general causes of action, such as the alter ego claim, on behalf of the bankrupt estate’s creditors.” Ozark, 816 F.2d at 1228 (emphasis in original). In Ozark, the trustee initiated an adversary proceeding seeking to pierce the corporate veil in order to hold the debtor corporation’s principals personally liable on the corporation’s debts. Ozark held that while a trustee can pursue causes of action belonging to the debtor, only the creditors of the corporation can pursue a cause of action belonging" } ]

[ { "docid": "2807710", "title": "", "text": "claim to avoid and recover a transfer of the Debtor’s property) nor a claim that may be brought by the Debtor (as the operator of the pyramid scheme), the Trustee lacks standing to assert the claim on behalf of Canyon’s bankruptcy estate. The Court agrees. For the reasons explained below, the Court concludes that the Trustee does not have standing to assert the OPSA Damage Claim. Section 704 of the Bankruptcy Code provides that a Chapter 7 trustee “shall collect and reduce to money the property of the estate for which the trustee serves....” 11 U.S.C. § 704(1) (emphasis added). See also Spartan Tube & Steel, Inc. v. Himmelspach (In re RCS Engineered Prods. Co.), 102 F.3d 223, 225 (6th Cir.1996). It is “well established that the ‘interests of the debtor in property’ include ‘causes of action.’ ” Honigman v. Comerica Bank (In re Van Dresser Corp.), 128 F.3d 945, 947 (6th Cir.1997) (quoting Bauer v. Commerce Union Bank (In re Bauer), 859 F.2d 438, 441 (6th Cir.1988)). See also Mixon v. Anderson (In re Ozark Rest. Equip. Co.), 816 F.2d 1222, 1225 (8th Cir.) (“[W]henever a cause of action ‘belongs’ to the debtor corporation, the trustee [or debtor-in-possession] has the authority to pursue it in bankruptcy proceedings.”), cert. denied, 484 U.S. 848, 108 S.Ct. 147, 98 L.Ed.2d 102 (1987). To accomplish the goal of marshaling all available assets of the bankruptcy estate, the trustee is given statutory power to sue and be sued, both as an estate representative, see 11 U.S.C. § 323(b); Bauer, 859 F.2d at 441, and as a creditor of the estate, see 11 U.S.C. § 544. See also Sender v. Simon, 84 F.3d 1299, 1304 (10th Cir.1996) (“Causes of action commenced by a trustee on behalf of a debtor estate fall into two broad categories: (1) actions brought by the trustee as successor to the debtor’s interests included as property of the estate under 11 U.S.C. § 541, and (2) actions brought under one of the trustee’s avoidance powers.”); Jones v. Hyatt Legal Servs. (In re Dow), 132 B.R. 853, 861 (Bankr.S.D.Ohio 1991) (“The bankruptcy" }, { "docid": "10522415", "title": "", "text": "Accent’s Chapter 11 filing, Gunberg moved the Debtor’s operations to the French Accent's business premises, and set up some sort of lease arrangement. She then extracted funds from the Debtor to pay the French Accent’s expenses. She later tried to reconcile these transactions by purporting to give the Debtor credit on its rent obligations for the funds extracted for the French Accent's operations. This did not result in a wash; the operating trustee in the French Accent's case pursued the Debtor on a rent claim of several hundred thousand dollars, and the liquidation of that claim was one of the precipitants of the Debtor's own Chapter 11 filing. . The layering of connections among all of these persons and entities is dizzying. Its complexity alone raises the possibility of other conflicts in the other bankruptcy cases. The most salient one is suggested by its retention by Kem for the matters described — after it had agreed, as a condition for obtaining court approval of its employment in that case, not to represent him \"with respect to any matter concerning the [D]ebtor during the course of [its] Chapter 11 case.” . Now Loc.R.Bankr.P. (D.Minn.) 9010-3(a). . A trustee under Chapter 7 administers the assets of the estate, by collecting them and reducing them to money. 11 U.S.C. § 704(1). As a general matter, the property of the estate includes \"all legal or equitable interests of the debtor and property as of the commencement of the case.” 11 U.S.C. § 541(a)(1). This includes causes of action and claims in litigation that the debtor held as of the commencement of ,its bankruptcy case. E.g., In re BJ. McAdams, Inc., 66 F.3d 931, 935 (8th Cir.1995); In re Ozark Restaurant Eqt. Co., Inc., 816 F.2d 1222, 1224 (8th Cir.1987), cert. den., 484 U.S. 848, 108 S.Ct. 147, 98 L.Ed.2d 102 (1987); Carlock v. Pillsbury Co., 719 F.Supp. 791, 855 (D.Minn.1989). To the extent such rights are not allowable to the debtor as exempt, a trustee takes them up and may liquidate them for the benefit of creditors. This is why this matter is in" }, { "docid": "14890819", "title": "", "text": "conclude that the bankruptcy court erred in holding that , under Michigan law an alter ego claim constitutes property of the debtor’s estate. Accordingly, it follows that RCS’s bankruptcy trustee does not have standing to assert an alter ego claim against Railcar, and that the automatic stay provision of the Bankruptcy Code does not apply to Spartan’s state court action. We address these issues in turn. A Bankruptcy Trustee’s Standing to Assert an Alter Ego Claim Against Parent Corporation Section 704 of the Bankruptcy Code requires a Chapter 7 trustee to “collect and reduce to money the property of the estate for which the trustee serves ....” 11 U.S.C. § 704(1) (emphasis added). Section 541(a)(1) defines “property of the estate” to include “all legal or equitable interests of the debtor in property as of the commencement of the ease.” Id. § 541(a)(1). It is clear that causes of action belonging to the debtor prior to bankruptcy constitute estate property, and that § 704(1) grants the bankruptcy trustee the authority to pursue such causes of action. See 4 Collier on Bankruptcy Par. 541.10[1], at 541-62 (15th ed. 1986). Whether a particular cause of action is available to the debtor, and thus constitutes “property of the estate,” is determined by state law. See, e.g., Butner v. United States, 440 U.S. 48, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979). Thus, if Michigan law allows a corporation to assert an alter ego claim against its shareholders or its parent company by disregarding its corporate entity, the.claim is property of the estate, and RCS’s bankruptcy trustee has standing to assert it against Railcar. No Michigan court has specifically addressed this issue, and courts interpreting the law of other states have reached varying results. See, e.g., In re Ozark Restaurant Equipment Co., 816 F.2d 1222, 1225-26 (8th Cir.), cert. denied, 484 U.S. 848, 108 S.Ct. 147, 98 L.Ed.2d 102 (1987) (concluding that subsidiary does not have standing to assert alter ego claim against parent company under Arkansas law); In re Lee Way Holding Co., 105 B.R. 404, 410-12 (Bankr.S.D.Ohio 1989) (concluding that subsidiary has standing to" }, { "docid": "22028646", "title": "", "text": "MEMORANDUM AND ORDER GUNN, District Judge.. This matter is before the Court on defendant’s motion to dismiss. Defendant argues that plaintiff lacks standing to prosecute this action and the Court lacks jurisdiction over the case because plaintiff filed for bankruptcy under Chapter 13 of the Bankruptcy Code in May of 1992 and failed to list this potential cause of action as an asset in the Schedule of Assets and Liabilities filed with the Bankruptcy Court. Defendant also argues that plaintiff should be estopped from maintaining this action because he did not list it on his Schedule of Assets. In response, plaintiff concedes that he lacks standing to pursue the action in his own name. Plaintiff argues that the case should not be dismissed. Instead, plaintiff contends the case should be stayed so that he can amend his bankruptcy petition to include this action as an asset and amend his complaint to name the bankruptcy trustee as a party under Fed.R.Civ.P. 19. Plaintiff further maintains that estoppel does not apply because his bankruptcy case is still open and the bankruptcy trustee may be joined as a party. Pursuant to 11 U.S.C. § 521(1), all bankruptcy debtors must “file a list of creditors, and unless the court orders otherwise, a schedule of assets and liabilities, a schedule of current income and current expenditures, and a statement of the debtor’s financial affairs.” The bankruptcy estate includes “all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 641(a)(1). Chapter 13 expands the definition of estate property to include “all property ... specified in [§ 541] that the debtor acquires after the commencement of the case but before the case is closed.” 11 U.S.C. § 1306(a)(1). Causes of action which belong to the debtor, including employment discrimination claims, are estate property. See In re Ozark Restaurant Equip. Co., Inc., 816 F.2d 1222, 1225 (8th Cir.), cert. denied, 484 U.S. 848, 108 S.Ct. 147, 98 L.Ed.2d 102 (1987); Bickford v. Ponce De Leon Center, 918 F.Supp. 377, 378 (M.D.Fla.1996); Harris v. St. Louis Univ., 114 B.R." }, { "docid": "22247370", "title": "", "text": "the estate, “all legal and equitable interests of the debtor in property,” a phrase which is sufficiently broad to include causes of action. Ramsay v. Dowden (In re Central Arkansas Broad. Co.), 68 F.3d 213, 214 (8th Cir.1995) (per curiam); Apostolou v. Fisher, 188 B.R. 958, 966 (N.D.Ill.1995). However, in order for a cause of action to be included in property of the estate for the purposes of 11 U.S.C. § 541(a)(1), it must have existed as of the petition date, see Sender v. Buchanan, 84 F.3d 1281, 1285 (10th Cir.1996); Mixon v. Anderson (In re Ozark Restaurant Equip. Co., Inc.), 816 F.2d 1222, 1224 (8th Cir.), cert. denied sub nom. Jacoway v. Anderson, 484 U.S. 848, 108 S.Ct. 147, 98 L.Ed.2d 102 (1987); Swift v. Seidler (In re Swift), 198 B.R. 927, 930 (Bankr.W.D.Tex.1996), and thus, in turn, for purposes of Section 1325(a)(4)’s liquidation analysis. In the instant matter, the cause of action, from which Robert ultimately received settlement proceeds, arose post-petition. Accordingly, it would not be included in property of the estate for purposes of the liquidation analysis under the best interests of creditors test. Therefore, its existence is irrelevant to the issue of the Chapter 13 plan modification as it was proposed, and to any objection thereto made by Grace. Thus, in light of the foregoing discussion, it was not error for the bankruptcy court to disregard the settlement in conducting the best interests of creditors test pursuant to Section 1325(a)(4), to the extent that it did so, as it proceeded to approve Robert’s third proposed posteonfirmation plan modification, b. The Best Efforts Test Grace further contends that the bankruptcy court was required to perform the “best efforts” test before approving Robert’s third posteonfirmation plan modification. She proposes that Robert’s settlement proceeds would be distributable to unsecured creditors pursuant to the test’s requirements. The “best efforts” test, located at 11 U.S.C. § 1325(b), provides in part that, (1) If the trustee or the holder of an allowed unsecured claim objects to the confirmation of the plan, then the court may not approve the plan unless, as of" }, { "docid": "10868773", "title": "", "text": "Under § 541, the estate over which the appointed trustee is given control “is comprised of ... all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1). Causes of action belonging to the debtor fall within this definition. Simon, 84 F.3d at 1304-05; Mixon v. Anderson (In re Ozark Restaurant Equip. Co.), 816 F.2d 1222, 1225 (8th Cir.), cert. denied, 484 U.S. 848, 108 S.Ct. 147, 98 L.Ed.2d 102 (1987). We emphasize § 541(a)(1) limits estate property to the debtor’s interests “as of the commencement of the case.” This phrase places both temporal and qualitative limitations on the reach of the bankruptcy estate. In a temporal sense, it establishes a clear-cut date after which property acquired by the debtor will normally not become property of the bankruptcy estate. See generally 4 Collier on Bankruptcy ¶ 541.05. In a qualitative sense, the phrase establishes the estate’s rights as no stronger than they were when actually held by the debtor. Hays & Co. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 885 F.2d 1149, 1154 n. 7 (3d Cir.1989). Congress intended the trustee to stand in the shoes of the debtor and “take no greater rights than the debtor himself had.” H.R.Rep. No. 595, 95th Cong., 1st Sess. 368, reprinted in 1978 U.S.C.C.A.N. 5963, 6323. Therefore, to the extent Mr. Sender must rely on 11 U.S.C. § 541 for his standing in this ease, he may not use his status as trustee to insulate the partnership from the wrongdoing of Mr. Donahue and HIA Inc. To be sure, Mr. Sender articulates sound reasons why it might be wise to allow an exception to this rule in cases, such as this one, where the trustee’s efforts stand to benefit hundreds of innocent investors. Howev er, to paraphrase the Supreme Court, the issue is not whether such an exception would make good policy but whether the exception can be found in the Bankruptcy Code. See Central Bank v. First Interstate Bank, — U.S. -, -, 114 S.Ct. 1439, 1448, 128 L.Ed.2d 119 (1994)." }, { "docid": "23403499", "title": "", "text": "on behalf of the estate. It is well established that the commencement of a Chapter 7 bankruptcy case requires the debtor to schedule as assets “all legal and equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1). The Supreme Court, in United States v. Whiting Pools, Inc., held that § 541(a) must be read broadly in determining what constitutes property of the estate: Both the Congressional goal of encouraging reorganizations and Congress’ choice of methods to protect secured creditors suggest that Congress intended a broad range of property to be included in the estate. 462 U.S. 198, 204, 103 S.Ct. 2309, 2313, 76 L.Ed.2d 515 (1983). Courts have uniformly held that the broad scope of § 541 encompasses causes of action existing at the time of the commencement of the bankruptcy action. See, e.g., Bauer v. Commerce Union Bank, 859 F.2d 438, CCH Bankr.L.Rep. 1172,486 (6th Cir.1989); In re Ozark Restaurant Equipment Co., Inc., 816 F.2d 1222, 1225 (8th Cir.), cert. denied, 48,4 U.S. 848, 108 S.Ct. 147, 98 L.Ed.2d 102 (1987); Sierra Switchboard Co. v. Westinghouse Elec. Corp., 789 F.2d 705, 707 (9th Cir.1986); Miller v. Shallowford Community Hospital, 767 F.2d 1556, 1559 (11th Cir.1985); Tignor v. Parkinson, 729 F.2d 977, 980-81 (4th Cir.1984); In re Smith, 640 F.2d 888, 890 (7th Cir.1981). Personal injury causes of action fall within the ambit of § 541. Jones v. Harrell, 858 F.2d 667, CCH Bankr.L.Rep. 1172,478 (11th Cir.1988); Tignor v. Parkinson, 729 F.2d at 980-81; In re Cottrell, 82 B.R. 45, 46 (W.D.Ky.1987); In re Richards, 57 B.R. 662, 663 (Bankr.D.Nev.1986); In re Mucelli, 21 B.R. 601, 603 (Bankr.S.D.N.Y.1982). See generally, 4 Collier on Bankruptcy ¶ 541.10[3] (15th ed. 1989). Thus, it is clear that the PHRA cause of action, which existed at the time plaintiff commenced his Chapter 7 case, constitutes property of the estate of plaintiff Cain. The trustee in a case under Chapter 7 is the sole representative of the estate. 11 U.S.C. § 323(a). See Vreugdenhil v. Hoekstra, 773 F.2d 213, 215 (8th Cir.1985). As such, it is" }, { "docid": "15427373", "title": "", "text": "the case is commenced. In re S.I. Acquisition, Inc., 817 F.2d 1142, 1149 (5th Cir.1987); In re MortgageAmerica Corp., 714 F.2d 1266, 1274 (5th Cir.1983); In re Ozark Restaurant Equipment Co., Inc., 816 F.2d 1222, 1225 (8th Cir.), cert. denied, — U.S. -, 108 S.Ct. 147, 98 L.Ed.2d 102 (1987) (citing 4 Collier on Bankruptcy § 541.10[1], at 541-62 (15th ed. 1986)). LWE’s cause of action against its officers and directors, therefore, is “property of the estate.” B. Duties of the Debtor-in-Possession Until a corporation which is in Chapter 11 can be reorganized or liquidated pursuant to a plan under 11 U.S.C. §§ 1121-29, a trustee or the debtor-in-possession is authorized to manage the property of the estate. See 11 U.S.C. § 1108. Here, LWE was continued as the debtor-in-possession. See 11 U.S.C. § 1101. With certain exceptions not relevant here, a debtor-in-possession performs the same functions as a trustee in a reorganization. See 11 U.S.C. § 1107(a); Whiting Pools, 462 U.S. at 200 n. 3, 103 S.Ct. at 2311 n. 3; In re Hughes, 704 F.2d 820, 822 (5th Cir.1983). The debtor-in-possession, therefore, “both enjoys the rights and must fulfill the duties of a trustee.” In re Hughes, 704 F.2d at 822; see also Georgia Pacific Corp. v. Sigma Service Corp., 712 F.2d 962, 966 (5th Cir.1983). As one of its duties, a trustee is not only entitled to but must collect the property of the estate. 11 U.S.C. § 704(1). Moreover, as the Supreme Court has held, “the trustee is ‘accountable for all property received,’ [11 U.S.C.] §§ 704(2), 1106(a)(1), and has the duty to maximize the value of the estate, see [11 U.S.C.] § 704(1).” Commodity Futures Trading Comm ’n. v. Weintraub, 471 U.S. 343, 352, 105 S.Ct. 1986, 1992, 85 L.Ed.2d 372 (1985) (emphasis added). Since LWE’s cause of action was property of the estate, the debtor-in-possession was duty bound to assert it if doing so would maximize the value of the estate. It is clear that a trustee — and, therefore, a debtor-in-possession — has the authority to bring an action for damages on behalf" }, { "docid": "22028647", "title": "", "text": "open and the bankruptcy trustee may be joined as a party. Pursuant to 11 U.S.C. § 521(1), all bankruptcy debtors must “file a list of creditors, and unless the court orders otherwise, a schedule of assets and liabilities, a schedule of current income and current expenditures, and a statement of the debtor’s financial affairs.” The bankruptcy estate includes “all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 641(a)(1). Chapter 13 expands the definition of estate property to include “all property ... specified in [§ 541] that the debtor acquires after the commencement of the case but before the case is closed.” 11 U.S.C. § 1306(a)(1). Causes of action which belong to the debtor, including employment discrimination claims, are estate property. See In re Ozark Restaurant Equip. Co., Inc., 816 F.2d 1222, 1225 (8th Cir.), cert. denied, 484 U.S. 848, 108 S.Ct. 147, 98 L.Ed.2d 102 (1987); Bickford v. Ponce De Leon Center, 918 F.Supp. 377, 378 (M.D.Fla.1996); Harris v. St. Louis Univ., 114 B.R. 647, 648 (E.D.Mo.1990). Accordingly, the bankruptcy trustee steps into the shoes of the debtor for purposes of asserting or maintaining the debt- or’s causes of action. In re B.J. McAdams, 66 F.3d 931, 935 (8th Cir.1995). Therefore, unless the trustee abandons the property, only the trustee is authorized to pursue a cause of action. 11 U.S.C. § 323; Harris, 114 B.R. at 648-49; Cain v. Hyatt, 101 B.R. 440, 441 (E.D.Pa.1989). Here, the Bankruptcy Court records indicate that plaintiff failed to list this cause of action on his schedule of assets and liabilities notwithstanding the fact that the action allegedly accrued in February of 1992 (although it was not filed until May 16, 1995). The records also indicate that a trustee has been appointed in the bankruptcy action. Plaintiff therefore lacks standing to pursue this employment discrimination action in his own name. More troubling to the Court, however, is whether plaintiff should be judicially estopped from pursuing the action due to his failure to list it as an asset. “A long-standing tenet of bankruptcy law" }, { "docid": "9971825", "title": "", "text": "with In re Ozark Restaurant Equipment Co., Inc., 816 F.2d 1222 (8th Cir.1987) (the cause of action belongs to the corporate creditors, and not the trustee). In the instant case the triangle of parties, namely debtor, trustee and creditors, is somewhat skewed, because in this case a creditor argues that only the Chapter 11 trustee, and not the debtor and its principals, may assert the debtor’s counterclaims against a creditor. The issue therefore, is to what extent, if any, may a Chapter 11 debtor and its principals have standing against a creditor to recover for damages to the debtor’s potential equity after the appointment of a Chapter 11 trustee who asserts affirmative defenses against the creditor’s claim in order to reduce such claim for the benefit of the remaining creditors. Generally, the trustee is regarded as the representative of the estate, with the capacity to sue and be sued, as defined in 11 U.S.C. § 323. A Chapter 11 trustee is explicitly granted broad responsibilities under 11 U.S.C. § 1106 in managing the debtor’s business, collecting the debtor’s assets and dealing with the debtor’s estate, including filing a plan under 11 U.S.C. § 1121. However, the Chapter 11 trustee does not have exclusive authority to file a plan of reorganization, because 11 U.S.C. § 1121(c) provides that any party in interest, including the debtor, may file a plan. Therefore, notwithstanding the appointment of a Chapter 11 trustee, the debtor continues to be regarded as a party in interest for plan filing purposes. Nonetheless, the appointment of a Chapter 11 trustee pursuant to 11 U.S.C. § 1104 terminates the debtor in possession’s trustee-like authority under 11 U.S.C. § 1107. The appointed Chapter 11 trustee then assumes the duties expressed in 11 U.S.C. § 1106, including most of the duties specified in 11 U.S.C. § 704. The Chapter 11 trustee’s authority to conduct the debtor’s business and to manage the estate, primarily for the creditors, does not mean that the Chapter 11 debtor’s interests are totally divested. In addition to having standing to file a reorganization plan, the debtor has a pecuniary" }, { "docid": "23569783", "title": "", "text": "Hills further argue that for various reasons, as discussed below, they were barred from trying their counterclaim on December 5, 1990, and they request that the Court transfer the counterclaim to bankruptcy court. Each of these arguments will be addressed in turn. A. Standing to Pursue the Counterclaim Individually The Hills claim that pursuant to 11 U.S.C. §§ 1203 and 1207 they have become debtors-in-possession of all property of the estate and, therefore, they no longer had standing individually to pursue the counterclaim at the trial scheduled for December 5, 1990. Relying on In re Ozark Restaurant Equipment Company, Inc., 816 F.2d 1222 (8th Cir.), cert. denied sub nom., Jacoway v. Anderson, 484 U.S. 848, 108 S.Ct. 147, 98 L.Ed.2d 102 (1987) and In re Couch, 43 B.R. 56 (Bankr.E.D.Ark.1984), they reason that upon the commencement of the bankruptcy action, their counterclaim became an asset of the bankruptcy estate created under 11 U.S.C. § 541, and only the debtors in possession have authority to pursue those causes of action belonging to the debtors as of the commencement of the bankruptcy proceedings. Section 1203 provides that a debtor in possession shall have essentially all the rights and powers of bankruptcy trustee. A debtor in possession therefore wears two hats: one as an individual debtor, and the other as a trustee. Simply because the Hills have assumed the status of debtors in possession does not mean that their status individually as debtors is destroyed, any more than if a separate trustee was appointed for their estate. The first question in this case, therefore, involves whether the Hills, as individual debtors, could have proceeded to trial on their counterclaim against the Bank. It is undisputed that causes of action belonging to the debtor at the commencement of the bankruptcy action are included within the property of the estate. Ozark Equipment, 816 F.2d at 1225. See also 11 U.S.C. § 541(a)(1) (property of the estate comprises the “legal and equitable interests of the debtor”). Accordingly, the trustee in bankruptcy has authority to pursue these causes of action for the benefit of the estate. Id." }, { "docid": "23403498", "title": "", "text": "the estate of plaintiff Cain. As required by 11 U.S.C. § 521(1), plaintiff attached to his Chapter 7 petition, a Statement of Financial Affairs and Schedules of Assets and Liabilities (the “Schedules”). The schedules did not, at that time or at any later date, list as an asset or otherwise identify plaintiff’s claim against the defendants. The trustee is not a party to this lawsuit and the plaintiff did not request authority from the trustee or the Bankruptcy Court to pursue this litigation. Moreover, the plaintiff’s cause of action against the defendants was not abandoned by the trustee. On January 15,1988, seven months prior to the filing of the instant Complaint, plaintiff’s Chapter 7 case was closed and the trustee in bankruptcy discharged. Defendants have filed, pursuant to Fed. R.Civ.P. 12(b)(1) and (6), a motion to dismiss the Complaint on the ground that plaintiff lacks standing to prosecute this action. Specifically, defendants contend that plaintiff’s PHRA employment discrimination action constitutes property of plaintiff’s estate and that the action may be prosecuted only by the trustee on behalf of the estate. It is well established that the commencement of a Chapter 7 bankruptcy case requires the debtor to schedule as assets “all legal and equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1). The Supreme Court, in United States v. Whiting Pools, Inc., held that § 541(a) must be read broadly in determining what constitutes property of the estate: Both the Congressional goal of encouraging reorganizations and Congress’ choice of methods to protect secured creditors suggest that Congress intended a broad range of property to be included in the estate. 462 U.S. 198, 204, 103 S.Ct. 2309, 2313, 76 L.Ed.2d 515 (1983). Courts have uniformly held that the broad scope of § 541 encompasses causes of action existing at the time of the commencement of the bankruptcy action. See, e.g., Bauer v. Commerce Union Bank, 859 F.2d 438, CCH Bankr.L.Rep. 1172,486 (6th Cir.1989); In re Ozark Restaurant Equipment Co., Inc., 816 F.2d 1222, 1225 (8th Cir.), cert. denied, 48,4 U.S. 848, 108" }, { "docid": "10522416", "title": "", "text": "to any matter concerning the [D]ebtor during the course of [its] Chapter 11 case.” . Now Loc.R.Bankr.P. (D.Minn.) 9010-3(a). . A trustee under Chapter 7 administers the assets of the estate, by collecting them and reducing them to money. 11 U.S.C. § 704(1). As a general matter, the property of the estate includes \"all legal or equitable interests of the debtor and property as of the commencement of the case.” 11 U.S.C. § 541(a)(1). This includes causes of action and claims in litigation that the debtor held as of the commencement of ,its bankruptcy case. E.g., In re BJ. McAdams, Inc., 66 F.3d 931, 935 (8th Cir.1995); In re Ozark Restaurant Eqt. Co., Inc., 816 F.2d 1222, 1224 (8th Cir.1987), cert. den., 484 U.S. 848, 108 S.Ct. 147, 98 L.Ed.2d 102 (1987); Carlock v. Pillsbury Co., 719 F.Supp. 791, 855 (D.Minn.1989). To the extent such rights are not allowable to the debtor as exempt, a trustee takes them up and may liquidate them for the benefit of creditors. This is why this matter is in suit at the Plaintiff's instance. . A debtor in possession under Chapter 11 has \"all the rights, ... and shall perform all the functions and duties, ... of a trustee serving in a case under” Chapter 11. 11 U.S.C. § 1107(a). 11 U.S.C. § 1106(a) in turn specifies the fiduciary duties of a Chapter 11 trustee, which include many of those assigned to a trustee under Chapter 7. . This also stems from the fact that the client, ultimately, is a legal construct created long after the subject events. The estate has a much more attenuated relationship with the facts than the actual participants would, were they or their business entity the real parties in interest. . This denial is in. a declaration submitted for this motion. . His statement is also enhanced by some external consistency. The Debtor’s post-confirmation solvency was critical to its commencement of performance under the plan, and Crowley obviously was concerned about that. He knew that the form of TransAmerica's cash infusion was crucial. The structuring of the cash infusion" }, { "docid": "13915192", "title": "", "text": "the customers, not the estate. If this were so, the trustee would be acting beyond the scope of his powers under the Bankruptcy Code. Section 704(1) of the Bankruptcy Code, 11 U.S.C. § 704(1) (Supp. IY 1986), gives the trustee the power to “collect and reduce to money the property of the estate”. 11 U.S.C. § 704(1) (Supp. IV 1986). Causes of action belonging to the debtor are included as property of the estate under 11 U.S.C. § 541(a)(1) (1982). E.g., In re Ozark Restaurant Equip. Co., 816 F.2d 1222, 1225 (8th Cir.), cert. denied, 484 U.S. 848 [108 S.Ct. 147, 98 L.Ed.2d 102] (1987); 4 Collier on Bankruptcy II 541.10[1], at 541-63. The trustee, however, has no power to assert any claim on behalf of the creditors when the cause of action belongs solely to them. E.g., Caplin v. Marine Midland Grace Trust Co., 406 U.S. 416, 434 [92 S.Ct. 1678, 1688, 32 L.Ed.2d 195] (1972); In re Ozark, supra, 816 F.2d at 1229-30; 4 Collier on Bankruptcy ¶ 541.10[8], at 541-70. Appellants contend that the claims filed by the trustee belong solely to the creditors, but an examination of the complaint shows that this is not so. In each of the four counts set forth in the complaint the trustee alleges damage to the debtor. The four counts (negligence, breach of contract, negligent misrepresentation and the statutory claim for unfair or deceptive practices) all clearly could have been asserted by the debtor, RCG. The trustee steps into the shoes of the debtor for the purposes of asserting or maintaining the debtor’s causes of actions, which become property of the estate. In re Ozark, supra, 816 F.2d at 1225. The confusion may stem from the trustee’s repeated emphasis upon the assertions that the accountant’s wrongdoing caused RCG’s customers to lose money. This emphasis on the customers’ claims appears to result from the $11.8 million claim filed on their behalf against the estate (the largest against the debtor) and from the concern that the estate may be held jointly and severally liable with the accountant in any eventual actions commenced" }, { "docid": "3307097", "title": "", "text": "representative of the estate, has the authority to prosecute and/or settle such causes of action.” Cain v. Hyatt, 101 B.R. 440, 442 (E.D.Pa.1989) (citing Bauer v. Commerce Union Bank, 859 F.2d 438 (6th Cir.1988)), cert. denied, 489 U.S. 1079, 109 S.Ct. 1531, 103 L.Ed.2d 836 (1989); Jones v. Harrell, 858 F.2d 667 (11th Cir.1988); In re Tvorik, 83 B.R. 450, 456 (Bkrptcy.W.D.Mich.1988). ;¡: s{c sfc H* ifc The debtor may regain standing to pursue a cause of action if the cause of action is abandoned by the trustee. Under 11 U.S.C. § 554(a) the trustee may abandon property which is burdensome to the estate or that is of inconsequential value to the estate. Under 11 U.S.C. § 554(b) the bankruptcy court may order the trustee to abandon such property at the request of a party. Accordingly, “upon the filing of a Chapter 7 bankruptcy, ‘the bankruptcy trustee steps into the shoes of the debtor for purposes of asserting or maintaining the debtor’s causes of action.’ ” Hunt v. Up North Plastics, Inc., 451, 1997 WL 851422 *2, quoting, Richardson v. United Parcel Service, 195 B.R. 737, 739 (E.D.Mo.1996); see also, In re Ozark Restaurant Equipment Co., Inc., 816 F.2d 1222, 1225 (8th Cir.1987) (“[I]t is clear that causes of action belonging to the debtor at the commencement of the case are included in the definition of property of the estate;” and “[a]ny of these actions that are unresolved at the time of filing then pass to the trustee as representative of the estate, who has the responsibility under Section 704(1) of asserting them whenever necessary for collection or preservation of the estate.”), cert. denied, 484 U.S. 848, 108 S.Ct. 147, 98 L.Ed.2d 102 (1987). As a consequence, once the Chapter 7 Petition was filed, only Dye, as the Bankruptcy Trustee, has the requisite standing, as a real party in interest, to prosecute any legal claims which are encompassed within Kemp’s Bankruptcy Estate. Hunt v. Up North Plastics, Inc., supra at 451, 1997 WL 851422 *2. Therefore, if Dye is successful in setting aside the 1991 transfer, she, rather than Superior" }, { "docid": "6629119", "title": "", "text": "7 of Title 11, U.S.Code in United States Bankruptcy Court for the Eastern District of Missouri. Pursuant to 11 U.S.C. § 521(1) plaintiff attached to her Chapter 7 petition a Statement of Financial Affairs and Schedules of Assets and Liabilities. Plaintiff did not list as an asset or otherwise identify her discrimination claims against defendant on either form. Plaintiff filed her Chapter 7 petition three months after her discharge and completion of an EEOC intake questionnaire, but prior to the filing of a formal EEOC charge or the civil complaint in this matter. Defendant argues that plaintiff lacks standing because she failed to list as an asset or otherwise identify her employment discrimination claims on the schedules accompanying her Chapter 7 petition. The debtor in a Chapter 7 bankruptcy case is required pursuant to 11 U.S.C. § 541(a)(1) to schedule as assets “all legal and equitable interests of the debtor in property as of the commencement of the case.” It is well established that “all legal and equitable interests ... in property” includes causes of action existing at the time of the commencement of the bankruptcy case. In re Ozark Restaurant Equipment Co., Inc., 816 F.2d 1222, 1225 (8th Cir.), cert. denied, 484 U.S. 848, 108 S.Ct. 147, 98 L.Ed.2d 102 (1987). The trustee in a case under Chapter 7 is the sole representative of the estate. 11 U.S.C. § 323(a); Vreugdenhil v. Hoekstra, 773 F.2d 213, 215 (8th Cir.1985). It is the trustee of the estate who “has the capacity to sue and be sued.” 11 U.S.C. § 323(b). “[A]fter appointment of a trustee, a Chapter 7 debtor no longer has standing to pursue a cause of action which existed at the time the Chapter 7 petition was filed. Only the trustee, as representative of the estate, has the authority to prosecute and/or settle such causes of action.” Cain v. Hyatt, 101 B.R. 440, 442 (E.D.Pa.1989) (citing Bauer v. Commerce Union Bank, 859 F.2d 438 (6th Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 1531, 103 L.Ed.2d 836 (1989); Jones v. Harrell, 858 F.2d 667 (11th Cir.1988); In re" }, { "docid": "596014", "title": "", "text": "the commencement of the case are included within the definition of property of the estate.” 816 F.2d at 1225 (emphasis in original). See also United States ex rel. Gebert v. Transport Admin. Servs., 260 F.3d 909, 913 (8th Cir.2001); Whetzal v. Alderson, 32 F.3d 1302, 1303 (8th Cir.1994); Carlock v. Pillsbury Co., 719 F.Supp. 791, 856 n. 31 (D.Minn.1989); In re Harrison, 314 B.R. 751, 753 (8th Cir. BAP 2004); In re Forbes, 215 B.R. 183, 190 (8th Cir. BAP 1997). “Accordingly, whenever a cause of action ‘belongs’ to the debtor corporation, the trustee has the authority to pursue it in bankruptcy proceedings.” In re Ozark Restaurant Equip. Co., Inc., 816 F.2d at 1225. See also Appletree Sq. I Ltd. P’ship v. O’Connor & Hannan, 575 N.W.2d 102, 104 and n. 3 (Minn.1998). This proposition is deceptively simple, however. It is greatly qualified by two corollaries, also longstanding in Eighth Circuit bankruptcy jurisprudence. First, property rights that enter the bankruptcy estate under 11 U.S.C. § 541(a) come in subject to all of the limitations they had in the ownership of the debtor. In re Schauer, 835 F.2d 1222, 1225 (8th Cir.1987). See also In re Central Ark. Broadcasting Co., 68 F.3d 213, 214 (8th Cir.1995); In re N.S. Garrott & Sons, 772 F.2d 462, 466 (8th Cir.1985) (broad definition of property of estate under 11 U.S.C. § 541(a) does not “enlarge the debtor’s rights against others beyond those existing at the commencement of the [bankruptcy] case”). Causes of action are no exception to this rule. E.g., Stumpf v. Albracht, 982 F.2d 275, 277-278 (8th Cir.1992) (debtor’s cause of action for legal malpractice that passed into bankruptcy estate is subject to same statute of limitations as applied before debtor’s bankruptcy filing). Second, not all causes of action that arose out of the pre-petition operations of a debtor-corporation follow the conduit of § 541(a) into the estate. As to the obligations of third parties on account of “alter ego” liability centering around a debtor corporation, ... [w]here ... the applicable state law makes such obligations or liabilities run to the corporate creditors" }, { "docid": "18553158", "title": "", "text": "conceded that he was asserting claims of creditors rather than of the estate, lacked standing); D.S.Q. Property Co., Ltd v. DeLorean, 891 F.2d 128 (6th Cir.1989) (holding that trustee cannot settle claims with or sue third parties on behalf of creditors); In re Ozark Restaurant Equipment Co., Inc., 816 F.2d 1222 (8th Cir.1987) (holding that trustee has no standing where he is pursuing claims on behalf of the debtor corporation’s creditors). But see In re B.J. McAdams, Inc., 66 F.3d 931 (8th Cir.1995) (distinguishing Ozark when trustee seeks invalidation of competing liens on grounds that lienor is debtor’s alter ego). The Second, Fifth, and Seventh circuits, however, have already decided that a bankruptcy trustee does have standing to raise an alter ego issue to collect the assets of the estate. Kalb, Voorhis & Co. v. American Fin. Corp., 8 F.3d 130 (2nd Cir.1993); Matter of S.I. Acquisition, Inc., 817 F.2d 1142 (5th Cir.1987); Koch Refining, 831 F.2d 1339 (7th Cir.1987). A Chapter 7 trustee has the legal duty to liquidate assets of the estate. 11 U.S.C. § 704 (1993). In performance of the duty to liquidate, the trustee also has a fiduciary duty to all creditors of the estate to protect their interests against dissipation of any assets of the estate. In re Rigden, 795 F.2d 727, 730 (9th Cir.1986) (noting that trustee has the duty to maximize distribution to creditors). The bankruptcy estate includes “all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1) (1993). Those “legal or equitable interests” have been defined broadly to include causes of action. See United States v. Whiting Pools, Inc., 462 U.S. 198, 204-05, 103 S.Ct. 2309, 2313, 76 L.Ed.2d 515 (1983). Once the bankruptcy petition has been filed, property rights belonging to a debtor under state law become assets of the estate. Butner v. United States, 440 U.S. 48, 54-55, 99 S.Ct. 914, 917-18, 59 L.Ed.2d 136 (1979). The application of the alter ego doctrine brings the assets of a bankruptcy debtor’s alter ego into the bankruptcy estate. See Suhl v." }, { "docid": "15427372", "title": "", "text": "result, we do not agree with the appellees that section 9:2792.1 is interpretive and may be applied retroactively. We now turn to the bankruptcy implications of this case in order to determine whether the Committee is entitled to maintain the action on LWE’s behalf. III. BANKRUPTCY PERSPECTIVE A. Property of the Estate The filing of a petition for reorganization under Chapter 11 of the Code creates an estate. 11 U.S.C. § 541(a). That estate is comprised of all the property listed under section 541, wherever located and by whomever held, including “all legal or equitable interests of the debtor in property as of the commencement of the case.” Id. The scope of the term “property of the estate” is very broad. United States v. Whiting Pools, 462 U.S. 198, 205-06, 103 S.Ct. 2309, 2313-14, 76 L.Ed.2d 515 (1983); In re Louisiana World Exposition, Inc., 832 F.2d 1391, 1399 (5th Cir.1987). Section 541(a)(l)’s reference to “all legal or equitable interests of the debtor in property” includes causes of action belonging to the debtor at the time the case is commenced. In re S.I. Acquisition, Inc., 817 F.2d 1142, 1149 (5th Cir.1987); In re MortgageAmerica Corp., 714 F.2d 1266, 1274 (5th Cir.1983); In re Ozark Restaurant Equipment Co., Inc., 816 F.2d 1222, 1225 (8th Cir.), cert. denied, — U.S. -, 108 S.Ct. 147, 98 L.Ed.2d 102 (1987) (citing 4 Collier on Bankruptcy § 541.10[1], at 541-62 (15th ed. 1986)). LWE’s cause of action against its officers and directors, therefore, is “property of the estate.” B. Duties of the Debtor-in-Possession Until a corporation which is in Chapter 11 can be reorganized or liquidated pursuant to a plan under 11 U.S.C. §§ 1121-29, a trustee or the debtor-in-possession is authorized to manage the property of the estate. See 11 U.S.C. § 1108. Here, LWE was continued as the debtor-in-possession. See 11 U.S.C. § 1101. With certain exceptions not relevant here, a debtor-in-possession performs the same functions as a trustee in a reorganization. See 11 U.S.C. § 1107(a); Whiting Pools, 462 U.S. at 200 n. 3, 103 S.Ct. at 2311 n. 3; In re Hughes," }, { "docid": "18677482", "title": "", "text": "to money the property of the estate for which such trustee serves.” 11 U.S.C. § 704(1) (1982) (emphasis added). Section 541 defines property of the estate as “all legal or equitable interests of the debtor in property as of the commencement of the case.\" 11 U.S.C. § 541(a)(1) (emphasis added). The bankruptcy trustee has conceded that this ease concerns only those fully paid GIC customer securities sold in July and September, 1985, by Hutton pursuant to its margin agreement with GIC. Furthermore, no certificates have been submitted evidencing GIC’s ownership of the subject securities. Hadley, therefore, has failed to show any possessory interest whatsoever in these securities by GIC when this lawsuit was filed. We recognize that there has been divergence among the circuits concerning the ability of a bankruptcy trustee to bring actions against third parties on behalf of creditors of the bankrupt. See, e.g., St. Paul Fire & Marine Ins. Co. v. PepsiCo, Inc., 884 F.2d 688 (2d Cir.1989); Williams v. California 1st Bank, 859 F.2d 664 (9th Cir.1988); Steyr-Daimler-Puch of America Corp. v. Pappas, 852 F.2d 132 (4th Cir.1988); Koch Refining v. Farmers Union Cent. Exch., Inc., 831 F.2d 1339 (7th Cir.1987), cert. denied, 485 U.S. 906, 108 S.Ct. 1077, 99 L.Ed.2d 237 (1988); In re Ozark Restaurant Equip. Co., 816 F.2d 1222 (8th Cir.), cert. denied, 484 U.S. 848, 108 S.Ct. 147, 98 L.Ed.2d 102 (1987); In re Mortgage America Corp., 714 F.2d 1266 (5th Cir.1983). On the facts of this case, however, we approve the reasoning of the Ninth Circuit in Williams, an analogous case factually and procedurally, and the Eighth Circuit in Ozark Equip. Co., where those respective circuit courts determined that the bankruptcy trustee does not have standing to assert claims of creditors of the bankrupt. We emphasize that our holding is restricted to the specific facts in this case. In Caplin v. Marine Midland Grace Trust Co., 406 U.S. 416, 92 S.Ct. 1678, 32 L.Ed.2d 195 (1972), the Supreme Court held that a reorganization trustee, acting under Chapter X of the former Bankruptcy Act, had no standing to assert claims of misconduct" } ]

[ { "docid": "22649537", "title": "", "text": "§ 1983 plaintiff and counsel should govern the award of attorney’s fees under § 1988. See Pharr v. Housing Authority of Prichard, 704 F. 2d 1216 (CA11 1983). The 12 factors set forth by the Johnson court for determining fee awards under § 706(k) of Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e-5(k) are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. 488 F. 2d, at 717-719. “The appropriate standards, see Johnson v. Georgia Highway Express, 488 F. 2d 714 (5th Cir. 1974), are correctly applied in such cases as Stanford Daily v. Zurcher, 64 F. R. D. 680 (N. D. Cal. 1974); Davis v. County of Los Angeles, 8 E. P. D. ¶ 9444 (C. D. Cal. 1974); and Swann v. Charlotte-Mecklenburg Board of Education, 66 F. R. D. 483 (W. D. N. C. 1975). These cases have resulted in fees which are adequate to attract competent counsel, but which do not produce windfalls to attorneys.” S. Rep. No. 94-1011, p. 6 (1976). Justice Sc alia, concurring in part and concurring in the judgment. I concur in the judgment and join the opinion of the Court except that portion which rests upon detailed analysis of the Fifth Circuit’s opinion in Johnson v. Georgia Highway Express, Inc., 488 F. 2d 714 (1974), and the District Court decisions in Swann v. Charlotte-Mecklenburg Board of Education, 66 F. R. D. 483 (WDNC 1975); Stanford Daily v. Zurcher, 64 F. R. D. 680 (ND Cal. 1974); and Davis v. County of Los" } ]

[ { "docid": "1903498", "title": "", "text": "end that an evenhanded, logical body of precedents is established. The right to a fee is firmly established in statutory law. In fact, the Court has already ordered, in its August 10, 1977 decision, that counsel for the plaintiffs be awarded reasonable attorneys’ fees. Therefore, I will now consider the controlling criteria and the amount of the award. The Fee Award In King v. Greenhlatt, supra, the standards for computing a fee award under 42 U.S.C. § 1988 are: 1) the time and labor required; 2) the novelty and difficulty of the question presented; 3) the skill required to perform the legal services; 4) the preclusion of other employment by the attorney due to acceptance of the case; 5) the customary fee in the community; 6) whether the fee is fixed or contingent; 7) time limitations imposed by client or circumstances; 8) the amount involved and the results obtained; 9) the experience, reputation and ability of the attorney; 10) the undesirability of the case; 11) the nature and length of the professional relationship with the client; 12) awards in similar cases. Id., at 1026-27, describing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-719 (5th Cir. 1974). All these criteria will be considered though the defendants did state on the record that they do not question “the competency of Plaintiffs’ counsel or the quality of their work”, the number of hours for which compensation is sought. (Defendant’s memo p. 4.) Time and labor required, novelty and difficulty of the questions presented; the skill required to perform the legal services; the experience, reputation and ability of the attorney. These factors can best be realized by noting the comprehensiveness of the case which encompassed the totality of prison life in Rhode Island. The unconstitutional conditions attacked were the filth and deterioration of the maximum security building, its unsanitary, inadequate and dangerous plumbing and electric lighting, the intolerable noise level within the section, the inadequate heating and ventilating system— guards and inmates wore heavy coats day and night — the existing fire hazards, deplorable food service — -presenting imminent danger to public" }, { "docid": "434463", "title": "", "text": "bankruptcy field. The rationale for the change is clearly set forth in the House Report on Section 330: to encourage successful administration of estates by attracting bankruptcy specialists of high quality, (footnotes omitted) (emphasis added) In re Penn-Dixie Industries, Inc., 18 B.R. 834 (Bkrtcy.S.D.N.Y.1982). Accordingly, we will allow reasonable compensation to attorneys for preparation of fee applications and other services attendant to recovery of fees where a bankruptcy case involves a solvent debtor and there is no competing interest shown to exist between the claims of creditors and the request for an award of attorneys’ fees from the debtor’s estate. In the ease at bench, counsel has requested fees of $8,698.50 for 146.1 hours of time devoted exclusively to recovery of attorney’s fees. The time appears reasonable. Therefore, we will grant counsel’s request and include $8,698.50 in the overall fee awarded for preparation and defense of fee applications before the Court. BONUS COMPENSATION The reasonableness of a request for counsel fees should be examined in light of the factors which other federal courts apply in awarding attorneys fees. These factors are: (1)The time and labor required; (2) The novelty and difficulty of the questions; (3) The skill requisite to perform the legal service properly; (4) The preclusion of other employment by the attorney due to acceptance of the case; (5) The customary fee; (6) Whether the fee is fixed or contingent; (7) Time limitations imposed by the client or other circumstances; (8) The amount involved and the results obtained; (9) The experience, reputation, and ability of the attorneys; (10) The ‘undesirability’ of the case; (11) The nature and length of the professional relationship with the client; (12) Awards in similar cases. In re Absco, Inc., 23 B.R. 250, 251 (Bkrtcy.E.D.Pa.1982) citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974) at 717-719. Where appropriate, a court may award bonus compensation (also referred to as “premium or enhancement” compensation) above the normal rate charged by an attorney if the attorney’s skill, diligence and experience so merit, or if the results obtained were particularly favorable in view of the obstacles" }, { "docid": "22538893", "title": "", "text": "brought to harass or embarrass the defendant. See H. R. Rep. No. 94-1558, p. 7 (1976); Christiansburg Garment Co. v. EEOC, 434 U. S. 412, 421 (1978) (“[A] district court may in its discretion award attorney’s fees to a prevailing defendant in a Title VII case upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith”). The 12 factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. 488 F. 2d, at 717-719. These factors derive directly from the American Bar Association Code of Professional Responsibility, Disciplinary Rule 2-106 (1980). “It is intended that the amount of fees awarded ... be governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases[,] and not be reduced because the rights involved may be nonpecuniary in nature. The appropriate standards, see Johnson v. Georgia Highway Express, 488 F. 2d 714 (5th Cir.1974), are correctly applied in such cases as Stanford Daily v. Zurcher, 64 F. R. D. 680 (ND Cal. 1974); Davis v. County of Los Angeles, 8 E. P. D. ¶ 9444 (CD Cal. 1974); and Swann v. Charlotte-Mecklenburg Board of Education, 66 F. R. D. 483 (WDNC 1975). These cases have resulted in fees which are adequate to attract competent counsel, but which do not produce windfalls to attorneys. In computing the fee, counsel for prevailing parties should be paid, as is traditional with attorneys compensated by a fee-paying client, ‘for all time reasonably expended on a matter.’" }, { "docid": "8880432", "title": "", "text": "In determining reasonable attorney’s fees under the Act, the court is guided by the factors set forth in Brown v. Bathke, 588 F.2d 634 (8th Cir. 1978) and Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), and by the principle that the award should be adequate to encourage meritorious actions by “private attorneys general” to enforce the Act. Murphy v. Ford Motor Credit Co., 629 F.2d 556, 561 (8th Cir. 1980). The Johnson factors are: (1) the time and labor required, (2) the novelty and difficulty of the question, (3) the skill requisite to perform the legal services properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the “undesirability” of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. Johnson v. Georgia Highway Express, Inc., 488 F.2d at 717-719. Generally, fees are awarded based on the number of hours claimed multiplied by the attorney’s regular hourly rate. Ladies Center Nebraska, Inc. v. Thone, 645 F.2d 645, 647 (8th Cir. 1981). Plaintiffs’ counsel has presented affidavits containing itemized listings of time spent, the manner in which it was spent, the hourly rate for the attorneys or legal assistant working on the case, and costs. The list reflects: 1) 27.25 hours by Kurt Anderson, managing attorney for Western Legal Services, at $75 per hour, 2) 32.87 hours for Jane Nord, an attorney practicing with Western Minnesota Legal Services since 1979, at $50 per hour, 3) five hours for Bradley Junkermeir, legal assistant, at $7.00 per hour, and 4) $78.36 in costs. The total is $3,800.61. The court has carefully considered the Johnson factors and the materials submitted by plaintiffs’ counsel and has determined that an award of $3,800.61 is reasonable. Plaintiffs contend that the award should be enhanced above the" }, { "docid": "16927936", "title": "", "text": "is governed by 29 U.S.C. § 216(b) which provides that a “reasonable attorney’s fee” may be awarded to plaintiff’s counsel. The trial court’s award of attorney’s fees must be upheld unless a clear abuse of discretion is found. Copper Liquor, Inc. v. Adolph Coors Co., 624 F.2d 575, 581 (5th Cir. 1980); Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717 (5th Cir. 1974). In Johnson, this Court set forth the following 12 factors to be considered by a trial court in awarding attorney’s fees: (1) the time and labor required, (2) the novelty and difficulty of the questions, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to the acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitation imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the “undesirability” of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. 488 F.2d at 717 — 19. In determining a reasonable award of attorney’s fees, the trial judge must consider the 12 factors in Johnson and articulate the basis for the award. Matter of First Colonial Corp. of America, 544 F.2d 1291 (5th Cir.), cert. denied, 431 U.S. 904, 97 S.Ct. 1696, 52 L.Ed.2d 388 (1977). Hedrick’s attorney indicated that he had not kept a record of his time because he had accepted the case on a contingency fee basis, but estimated that he had spent approximately 300 hours working on the case. Acknowledging that a reduction in the hours claimed was probably warranted due to the absence of substantiating records, Hedrick’s attorney requested the court to find at a minimum that he had spent 200 hours in connection with the case. Hercules was represented by two attorneys who indicated that they had each spent approximately 150 hours working on the case. Hedrick’s attorney stated that his general hourly fee is $75" }, { "docid": "434464", "title": "", "text": "awarding attorneys fees. These factors are: (1)The time and labor required; (2) The novelty and difficulty of the questions; (3) The skill requisite to perform the legal service properly; (4) The preclusion of other employment by the attorney due to acceptance of the case; (5) The customary fee; (6) Whether the fee is fixed or contingent; (7) Time limitations imposed by the client or other circumstances; (8) The amount involved and the results obtained; (9) The experience, reputation, and ability of the attorneys; (10) The ‘undesirability’ of the case; (11) The nature and length of the professional relationship with the client; (12) Awards in similar cases. In re Absco, Inc., 23 B.R. 250, 251 (Bkrtcy.E.D.Pa.1982) citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974) at 717-719. Where appropriate, a court may award bonus compensation (also referred to as “premium or enhancement” compensation) above the normal rate charged by an attorney if the attorney’s skill, diligence and experience so merit, or if the results obtained were particularly favorable in view of the obstacles presented. Bonus compensation for exemplary efforts by counsel is not a novel concept. It was available under the Bankruptcy Act even though the principle of strict economy prevailed. See In re Aminex Corp., 15 B.R. 356 (Bkrtcy.S.D.N.Y.1981); In re Penn Central Transportation Co., 23 B.R. 499 (D.C.E.D.Pa.1982); Rose Pass Mines, Inc. v. Howard, 615 F.2d 1088 (5th Cir.1980). With the advent of a more liberal standard of compensation under the Code, bankruptcy courts have looked with increasing favor upon requests for bonus compensation. See In re Saxon Industries, Inc., 29 B.R. 319 (Bkrtcy.S.D.N.Y.1983); In re Penn-Dixie Industries, Inc., 18 B.R. 834 (Bkrtcy.S.D.N.Y.1982). In Penn-Dixie, supra, Judge Lifland summarized the criteria for determining fee awards: (1) the quantity factor: documented time spent and customary billing rates; (2) the quality factor: the quality of advocacy required and delivered, taking into account the novelty and difficul- ■ ty of the issues presented, skills ; called for, time constraints, and coun- ! sel’s personal qualifications; (3) the result factor: the bottom line amount recovered for the estate and its" }, { "docid": "848300", "title": "", "text": "the Court will now consider the amount of the fee award. THE FEE AWARD The teachings of King v. Greenblatt, supra, and Souza v. Southworth, 564 F.2d 609 (1st Cir. 1977) are the controlling precedents which must guide the Court in computing a reasonable fee award. In King, the First Circuit set forth the standards to be used when computing a fee award under 42 U.S.C. § 1988. The Court adopted the twelve factors in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), which case was cited with approval in the legislative history of the Fees Act: 1) the time and labor required; 2) the novelty and difficulty of the question presented; 3) the skill required to perform the legal services; 4) the preclusion of other employment by the attorney due to acceptance of the case; 5) the customary fee in the community; 6) whether the fee is fixed or contingent; 7) time limitations imposed by client or circumstances; 8) the amount involved and the results obtained; 9) the experience, reputation and ability of the attorney; 10) the undesirability of the case; 11) the nature and length of the professional relationship with the client; 12) awards in similar cases. King v. Greenblatt, 560 F.2d at 1026-27, describing Johnson, 488 F.2d at 717-19. All of these criteria need not be considered in the instant case. “[T]he time required” has been stipulated and filed; thus, the number of hours claimed by plaintiffs’ counsel should not be further reduced because of any alleged duplication of effort or unnecessary use of counsel in non-legal work; “the experience, reputation and ability of the attorney” is “readily concede[d] to [be of] high caliber”. Defendants’ Post Hearing Reply Memorandum, Inmates of the Boys’ Training. School v. Bradford Southworth, et a 1. The remaining factors ■are considered individually herein. The novelty and difficulty of the question presented; the undesirability of the case and the skill required to perform the legal services. This Court’s experience in the many public issue cases invoking its equitable powers to enjoin certain state practices, leads to the inescapable conclusion" }, { "docid": "8331219", "title": "", "text": "formality. The Court is guided by the factors set out in the case law, specifically those listed in In re Permian Anchor Services, Inc., 649 F.2d 763 (10th Cir.1981), which adopted the guidelines for determining the reasonableness of attorney’s fees set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974). Those guidelines are: 1. The time and labor required; 2. The novelty and difficulty of the questions; (1) reasonable compensation for actual, necessary services ... 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 ... 3. The skill requisite to perform the legal service properly; 4. The preclusion of other employment by attorney due to acceptance of the case; 5. The customary fee; 6. Whether the fee is fixed or contingent; - 7. Time limitations imposed by the client or circumstances; 8. The amount involved and the results obtained; 9. The experience, reputation, and ability of the attorney; 10. The “undesirability” of the case; 11. The nature and length of the professional relationship with the client; and 12. Awards in similar cases. Id. at 717-719. The twelve factors are appropriate to determine Chapter 13 attorney’s fee awards. Harman v. Levin, 772 F.2d 1150, 1152 (4th Cir.1985). The Court notes that the number of hours of service expended by counsel in a case incorporates many of the other factors to be considered by the Court in awarding compensation. As stated by the Sixth Circuit in Northcross v. Board of Education of Memphis City Schools, 611 F.2d 624, 642 (6th Cir.1979), cert. denied, 447 U.S. 911, 100 S.Ct. 2999, 64 L.Ed.2d 862 (1980) (cited by In re Hamilton Hardware Company, Inc., 11 B.R. 326, 330 (Bankr.E.D.Mich.1981)), “The number of hours of work will automatically reflect the ‘time and labor involved,’ ‘the novelty and difficulty of the question,’ and ‘preclusion of other employment.’ ” The court continued, “The attorney’s normal hourly billing rate will reflect ‘the skill requisite to perform the legal services properly,’ ‘the customary fee,’ and the" }, { "docid": "13170034", "title": "", "text": "section 1988, the district court embarked upon a determination of the amount of attorneys’ fees due. The evidence presented to the district judge by Williams’ attorneys indicated that they had devoted 400 hours to Williams’ case. Additionally, the district court noted that the customary hourly rate for attorneys of equal experience ranged from $50 to $60 per hour, and that customary fees in this area ranged from $3000 to $5000. However, the district court concluded that the 400 hours devoted to Williams’ ease was excessive, and, hence, Williams’ attorneys were awarded only $2500 as attorneys’ fees. Surprisingly, the district judge made the following statement in his opinion: “The court is aware that such fee award fails to fully compensate Williams’ counsel for their time, but would hope that the experience gained would prove beneficial.” In Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974), this Court listed the following factors as the relevant considerations to be used by a district court in awarding attorney’s fees: (1) The time and labor required, (2) the novelty and difficulty of the questions, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee [for similar work in the community], (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the “undesirability” of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. Although each of the Johnson factors is significant, recent decisions by this Court indicate that four of the factors are of special importance: (a) the time and labor involved, (b) the customary fee, (c) the amount involved and the results obtained, and (d) the experience, reputation, and ability of counsel. See Mitchell v. Scheepvaart Maatschappij Trans-Ocean, 579 F.2d 1274, 1281 n. 10 (5th Cir.1978); Rainey v. Jackson State College, 551 F.2d 672, 677 (5th" }, { "docid": "18790953", "title": "", "text": "district court denied the motion to intervene, it considered Mumford’s evidence and found it unpersuasive. We agree with the district court that the propriety of the relief was based on the conduct of the City in repeatedly discriminating against Walters, and the fact that Mumford was performing her duties well does not bar Walters’ relief. Accordingly, we dismiss Mumford’s appeal from the district court’s denial of her motion to intervene. F. Attorney’s Fees The appellants challenge the amount of fees the district court awarded. The court found that counsel for Walters had spent 538 hours on the case, twenty-two of which entailed paralegal work. The parties stipulated to an hourly rate of $85 for counsel’s fee and the court ruled that paralegal time should be compensated at $30 per hour. The unenhanced fee, therefore, was $44,-520. The district court then enhanced the fee by 35% to reflect the fact that counsel took the case on a contingent basis. Jones v. Central Soya Co., 748 F.2d 586 (11th Cir.1984). The district court further enhanced the award by an additional 5% to reflect the skill of counsel, and 10% for delay in payment. The amount of attorney’s fees awards are determined under the factors set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974), and we review the awards for an abuse of discretion. The Johnson court cited the following considerations as relevant to the determination of the reasonableness of the award: 1) the time and labor required; 2) the novelty and difficulty of the questions; 3) the skill requisite to perform the legal service properly; 4) the preclusion of other employment by the attorney due to the acceptance of the case; 5) the customary fee; 6) whether the fee is fixed or contingent; 7) time limitations imposed by the client or the circumstances; 8) the amount involved and the results obtained; 9) the experience, reputation, and ability of the attorneys; 10) the “undesirability” of the case; 11) the nature and length of the professional relationship with the client; and 12) awards in similar cases. Johnson, 488 F.2d" }, { "docid": "22928053", "title": "", "text": "$21,778.93, making the total award of fees and costs $266,466.43. Both parties promptly appealed, Coors seeking a reduction in the amount awarded and Letcher seeking an increase. I. ATTORNEYS’ FEES Judge Wisdom’s thoughtful opinion in Copper Liquor II summarized the appropriate procedure for determining a reasonable attorneys’ fee in the Fifth Circuit. We borrow from and condense that discussion here. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), listed twelve factors that must be considered by a district court in this circuit in awarding a statutorily authorized attorneys’ fee: (1) The time and labor required, (2) the novelty and difficulty of the questions, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee [for similar work in the community], (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the “undesirability” of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. The district judge is required to “ ‘explain the findings and reasons upon which the award is based, including an indication of how each of the twelve factors in Johnson affected his decision.’ ” Copper Liquor II, 624 F.2d at 581 (quoting Matter of First Colonial Corp. of America, 544 F.2d 1291, 1299-1300 (5th Cir. 1977)). In Copper Liquor II, we stated that, although the “district court’s findings of fact are well developed[,] the order ... does not articulate the reasons for awarding attorneys’ fees of $45,000.” Id. at 582. Of the twelve Johnson factors, Judge Wisdom stated that recent Fifth Circuit decisions suggested that four of the factors deserve “special heed”: “(1) the time and labor involved, (5) the customary fee, (8) the amount involved and the results obtained, and (9) the experience, reputation, and ability of counsel.” Id. at 583. These factors should be considered in" }, { "docid": "18790954", "title": "", "text": "by an additional 5% to reflect the skill of counsel, and 10% for delay in payment. The amount of attorney’s fees awards are determined under the factors set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974), and we review the awards for an abuse of discretion. The Johnson court cited the following considerations as relevant to the determination of the reasonableness of the award: 1) the time and labor required; 2) the novelty and difficulty of the questions; 3) the skill requisite to perform the legal service properly; 4) the preclusion of other employment by the attorney due to the acceptance of the case; 5) the customary fee; 6) whether the fee is fixed or contingent; 7) time limitations imposed by the client or the circumstances; 8) the amount involved and the results obtained; 9) the experience, reputation, and ability of the attorneys; 10) the “undesirability” of the case; 11) the nature and length of the professional relationship with the client; and 12) awards in similar cases. Johnson, 488 F.2d at 717-19. That Walters’ counsel undertook this case on contingency is one of the factors the district court may consider in setting the fee. Jones v. Central Soya, supra. Appellants contend, however, that no enhancement is appropriate because the agreement between Walters and his counsel called for Walters to pay $150 per month regardless of the outcome. We disagree. The purpose of contingent fee enhancements is to encourage attorneys to undertake cases where entitlements guaranteed by federal law are at stake even though the attorney runs the risk of not being compensated. It is obvious from the size of the unenhanced fee that the $150 per month would have done little to compensate counsel for the great time and effort spent on this case and counsel in this case assumed substantial risk. Accordingly the $150 per month agreement did not make enhancement inappropriate. See Pharr v. Housing Authority, 704 F.2d 1216 (11th Cir.1983). Appellants further challenge the enhancement because the contingency agreement provided that counsel would receive the amount of fees awarded by the court" }, { "docid": "10702301", "title": "", "text": "legal service properly,” “the customary fee,” and the “experience, reputation and ability of the attorney.” 611 F.2d at 643. As Johnson noted, “the trial judge should closely observe the attorney’s work product ...” 488 F.2d at 718. The customary fee means the ordinary fee “for similar work in the community.” Id. at 718. The Court is convinced that, although plaintiff is not an expert in civil rights litigation, his experience is adequate and that $90.00 is a reasonable fee in the community in which he practices. The Court, however, is mindful of the limited degree of success involved in this matter, but at this juncture will withhold review of this issue until the time spent by counsel is analyzed. C. Time Spent By Counsel In awarding statutorily authorized attorneys’ fees in this circuit, district courts must follow the guidelines set forth by the Fifth Circuit in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974); Fain v. Caddo Parish Police Jury, 564 F.2d 707, 710 (5th Cir.1977); Matter of First Colonial Corp. of America, 544 F.2d 1291 (5th Cir.1977), cert. denied, 431 U.S. 904, 97 S.Ct. 1696, 52 L.Ed.2d 388. Accordingly, the Court will analyze the requested award in light of the following Johnson factors: (1) The time and labor required, (2) the novelty and difficulty of the questions, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the “undesirability” of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. 488 F.2d at 717-19. In computing reasonable attorneys’ fees, the district judge must “explain the findings and reasons upon which the award is based, including an indication of how each of the twelve factors in Johnson affected his decision.” Matter of" }, { "docid": "2075029", "title": "", "text": "Inc., 9 B.R. 841, 848 (Bankr.N.D.Ala.1981). In re Lloyd, Carr & Co., v. Abrams, 2 B.R. 714, 717 (Bankr.D.Mass.1979). In re Pacific Homes, 20 B.R. 729, 736-737 (Bankr.C.D.Cal.1982). 2 Collier, Par. 330.05, at 330-17-18. See also Butenas, Establishing Attorney’s Fees Under the New Bankruptcy Code, 87 Comm.L.J. 237, 238 (1982). The factors specified in Johnson are: (1) The time and labor required; (2) The novelty and difficulty of the questions; (3) The skill requisite to perform the legal service properly. (4) The preclusion of other employment by the attorney due to acceptance of case; (5) The customary fee; (6) Whether the fee is fixed or contingent; (7) Time limitations imposed by the client or the circumstances; (8) The amount involved and the results obtained; (9) The experience, reputation, and ability of the attorneys; (10) The “undesirability” of the case; (11) The nature and length of the professional relationship with the client; and (12) Awards in similar cases. Johnson v. Georgia Highway Express, Inc., 488 F.2d at 717 to 719. 11 This court will apply the Johnson factors to the instant case [by grouping the factors as they appear in this case]. Group A are factors (4) preclusion of other employment, (6) fixed or contingent fee, (10) undesirability of the case and (11) nature and length of the professional relationship with the client. No showing has been made as to any of these factors which would suggest a fee enhancement nor can the court conceive of the existence of any from the files and documents on file. The applicant employed was on a general retainer basis subject to court approval as to the necessity and reasonableness of the charges. Group B are factors (2) novelty and difficulty of the questions, (3) skill requisite to perform the legal service properly, (7) time limitations imposed and (9) experience, reputation and ability of the attorneys. These group B factors overlap and are interdependent. The practice of bankruptcy law is a specialty in itself and within that area, the competent handling of chapter 11 reorganizations requires an even greater specialization. The attorney who assumes the" }, { "docid": "1131657", "title": "", "text": "are reasonable. In re Boddy, 950 F.2d 334 (6th Cir.1991). That is, the bankruptcy court is to multiply the attorney’s reasonable hourly rate by the number of hours reasonably expended performing necessary legal work. However, the calculation of a reasonable fee need not be limited to determining a billing rate and number of hours: The bankruptcy court may also exercise its discretion to consider other factors such as the novelty and difficulty of the issues, the special skills of counsel, the results obtained, and whether the fee awarded is commensurate with fees for similar professional services in nonbank-ruptcy cases in the local area. Id. at 338. This language found application in In re Malewicki, 142 B.R. 353, 355 (Bankr. D.Neb.1992). Citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-719 (5th Cir.1974), the in Malewicki court identified at least twelve factors which may be considered in determining what reasonable compensation is: 1. The time and labor required; 2. The novelty and difficulty of the questions; 3. The skill requisite to perform the legal service properly; 4. ■ The preclusion of other employment due to the acceptance of the case; 5. The customary fee; 6. Whether the fee is fixed or contingent; 7. Time limitations imposed by the client or circumstances; 8. The amount involved and the results obtained; 9. The experience, reputation, and ability of the attorneys; 10. The “undesirability” of the case; 11. The nature and length of the professional relationship with the client; and 12. Awards in similar cases. Although the court noted that there was some controversy as to whether the so called “Johnson” factors should be considered in determining the lodestar multiples or whether they should be used to make adjustments to the lodestar product, this appears to be largely a matter of semantics. In either case, these factors must be considered. In In re Atwell, 148 B.R. 483 (Bankr.W.D.Ky.1993) the court reviewed the Johnson factors after it had completed its lodestar analysis. The Atwell court characterized the Johnson factors as relating to “global” adjustments to the lodestar result rather than incremental adjustments to the" }, { "docid": "6643256", "title": "", "text": "hours of work will automatically reflect the ‘time and labor involved,’ ‘the novelty and difficulty of the question,’ and ‘preclusion of other employment.’ The attorney’s normal hourly billing rate will reflect ‘the skill requisite to perform the legal services properly,’ ‘the customary fee,’ and the ‘experience, reputation and ability of the attorney.’ ” Northcross v. Board of Ed. of Memphis City Schools, 611 F.2d 624, 642 (6th Cir. 1979). In the Matter of Hamilton Hardware Co., Inc., 11 B.R. 326 (Bkrtcy.E.D.Mich.1981). Once appropriate fee applications have been filed, the Court must consider the request for allowance in light of the factors which federal courts apply in awarding attorney fees. These factors are: (1) The time and labor required; (2) The novelty and difficulty of the questions; (3) The skill requisite to perform the legal service properly; (4) The preclusion of other employment by the attorney due to acceptance of the case; (5) The customary fee; (6) Whether the fee is fixed or contingent; (7) Time limitations imposed by the client or other circumstances; (8) The amount involved and the results obtained; (9) The experience, reputation, and ability of the attorneys; (10) The ‘undesirability’ of the case; (11) The nature and length of the professional relationship with the client; (12) Awards in similar cases. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974) at 717-719. In this matter, the Court finds that factors one through five and eight and nine are most significant in this case. The reorganization of this company did not involve any substantial or novel litigation, nor did the reorganization consume an inordinate amount of time in negotiating the plan. Although a case which presents counsel with extraordinary and difficult issues may merit a fee of $250.00 an hour for the litigation or negotiation of the problem, work of a lesser value should be compensated at a lesser value. In the Matter of Piedmont Development and Investment Corporation, 3 B.C.D. 97 (Bankr.N.D.Ga.1976) at p. 101. In this case, co-counsel to the creditors’ committee, Lawrence J. Lichtenstein, Esquire, and the firm of Adelman and Lavine, Esquires," }, { "docid": "18286540", "title": "", "text": "the Lindy \"lodestar” approach, the district court must first determine the number of hours reasonably spent on the matter and then multiply the hours by a rate that the court finds reasonable for similarly complex, non-contingent work. The lodestar figure may then be adjusted upward or downward for certain multiplier factors, such as contingency and quality of work performed. Id. at 166-68. At approximately the same time as the Lindy decision was rendered, the Fifth Circuit in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), adopted a twelve-factor method for determining court-awarded attorneys' fees. The twelve Johnson factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions involved; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to the acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the \"undesirability” of the case; (11) the nature and the length of the professional relationship with the client; (12) awards in similar cases. Id. at 717-19. Although Johnson was a statutory fee award case, it has been considered outside the realm of statutory fees.’ See e.g., Hoffert v. General Motors Corp., 656 F.2d 161 (5th Cir. Unit A 1981), cert. denied, 456 U.S. 961, 102 S.Ct. 2037, 72 L.Ed.2d 485 (1982). The Eleventh Circuit recently noted that the Lindy lodestar approach subsumes several of the Johnson factors and has refined its analysis for determining statutory fee awards in favor of the lodestar approach. Norman v. Housing Auth. of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988). In Camden I, the 11th Circuit clarified that regardless of the approaches provided in Lindy and Johnson, the lodestar and twelve-factor methods are inappropriate as a basis for computing common fund awards. 946 F.2d at 773. Instead, the “analysis in common fund cases focuses not on the plaintiffs' position as" }, { "docid": "6945016", "title": "", "text": "is determined by multiplying the number of hours spent on a case times a reasonable hourly rate of compensation for each attorney involved. In arriving at reasonableness under this formula, 12 factors are considered. These factors are: (1) the time and labor required; (2) the novelty and difficulty of the question involved; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation and ability of the attorney; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-719 (5th Cir.1974). Once these factors are considered and a lodestar figure determined, the resulting product is strongly presumed to be the reasonable fee to which counsel is entitled. Modification of the “lodestar” figure will be made only in exceptional circumstances, where supported by specific evidence and detailed findings of the awarding court. Delaware Valley, 106 S.Ct. at 3098. As we consider the fees requested in the instant applications against the legal standards set forth above, we note that we do not begin our inquiry with a clean slate. Unfortunately for all concerned, Judge Brown, who ably presided over the vast majority of the activity, which is now the subject of these applications, is no longer with us. He would have been in the best position to evaluate reasonableness of the fees requested in light of Johnson and Delaware Valley. In addition, it was Judge Brown who, based upon his longstanding familiarity with the case, had approved the fees requested in previous interim applications. Our review of the testimony and the arguments of counsel convinces us, how ever, that the hourly rates and the number of hours expended by the applicants herein are, indeed, reasonable. The record shows that almost $25,000,000" }, { "docid": "2529984", "title": "", "text": "on Jan. 31, 1987, counsel agreed to reduce their request for attorney fees to eliminate charges for work performed before the petition was filed and, therefore, not incurred in a civil proceeding, and for expenses not properly billed to petitioners’ account. In their supplemental motion for award of litigation costs filed on Mar. 18, 1987, counsel increased their original request to reflect the following costs incurred between Nov. 1, 1986, and Jan. 31, 1987, in connection with petitioners’ motion for award of litigation costs: Attorney fees.$2,121.00 Deposition transcripts . 401.00 Miscellaneous expenses. 12.27 Total. 2,634.27 If the other conditions for a fee award are met, petitioners’ counsel are entitled to be compensated for their time spent litigating the attorney’s fee issue. See Northcross v. Board of Education of the Memphis City Schools, 611 F.2d 624, 643 (6th Cir. 1979), cert. denied 447 U.S. 911 (1980). These factors are (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the result obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. These 12 factors are consistent with the American Bar Association Code of Professional Responsibility, Disciplinary Rule 2-106 (1980). See Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 719 (5th Cir. 1974). The U.S. Supreme Court noted in Hensley v. Eckerhart, 461 U.S. 424, 433 n. 7 (1983), that although Hensley was a Civil Rights Act case, the standards set forth in Hensley “are generally applicable in all cases in which Congress has authorized an award of fees to a “prevailing party.’ ” In Hensley v. Eckerhart, 461 U.S. at 429-430, the Supreme Court cited the Johnson factors as the" }, { "docid": "6666683", "title": "", "text": "to the fee requested under the guidelines set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-719 (5th Cir. 1974), and expressly adopted by the Eighth Circuit. Ladies Center, Nebraska, Inc. v. Thone, 645 F.2d 645, 647 (8th Cir. 1981); Doe v. Poelker, 515 F.2d 541, 548 (8th Cir. 1975), appeal after remand, 527 F.2d 605 (8th Cir. 1976), rev’d on other grounds, 432 U.S. 519, 97 S.Ct. 2391, 53 L.Ed.2d 528 (1977). As pointed out in the well-reasoned brief by counsel for the plaintiff, under Johnson the following schedule must be evaluated in computing the proper amount of an attorney’s fee award: (1) the time and labor required, (2) the novelty and difficulty of the question, (3) the skill requisite to perform the legal services properly, (4) the preclusion of other employment due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and results obtained, (9) the experience, reputation and ability of counsel, (10) the undesirability of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. Johnson v. Georgia Highway Express, Inc., 488 F.2d at 717-719. Zoll v. Allamakee Community School District, 588 F.2d 246, 252 n.11 (8th Cir. 1978). As a general rule, the Court should award the number of hours claimed multiplied by the attorney’s regular hourly rate. Ladies Center, Nebraska, Inc. v. Thone, 645 F.2d at 647. In this regard, however, the Court retains the discretion to tailor the hourly rate to be paid to the skill and experience of counsel, and to calculate the number of hours necessary to organize and litigate a case such as the one at bar. Brown v. Bathke, 588 F.2d 634, 638 (8th Cir. 1978). Thus, if the Court should find that an amount less than the total sum of the attorney’s customary rate multiplied by the number of hours claimed is appropriate under the criteria enumerated in Johnson, it may reduce the award" } ]

[ { "docid": "15722437", "title": "", "text": "In re Grede Foundries, Inc., 435 B.R. 593, 595 (Bkrtcy.W.D.Wis.2010). PREPA further points out that when courts are determining if a thing is a “good” for purposes of section 503(b)(9), courts apply the definition of “good” from the Uniform Commercial Code (the “UCC”). Therefore, because the UCC defines “goods” as “all things that are moveable at the time of identification to a contract for sale,” electricity is a “good” under the UCC definition of such term. Further, because electricity is identifiable to the consumer’s contract at the time it is metered at the consumer’s place and is moveable at the time that it is metered and afterwards, a utility that provides electricity to a debtor during the twenty days before the commencement of debtor’s bankruptcy case is entitled to administrative expense priority for the invoiced amount. Summarily, since PREPA supplied electricity to Debtor, in the Debtor’s ordinary course of business, during the twenty (20) day period prior to the commencement of Debtor’s bankruptcy case on March 18, 2009, PREPA is entitled to an administrative expense claim for the value of that electricity that remains unpaid pursuant to 11 U.S.C. § 503(b)(9) in the amount of $89,336.42. In opposition, Trustee argues that PREPA’s Motion is actually a belated proof of claim in “disguise,” which cannot be filed three years after the deadline set by this Court. Pursuant to Fed.R.Bankr. P., Rule 3003, the Court can set the deadlines to file proof of claims pursuant to § 501 of the Bankruptcy Code. Under the then active Local Rule 3003-1, “Proofs of claim in Chapter 11 cases must be filed: (a) on or before ninety (90) days from the date first set for the § 341 meeting of creditors; and, (b) for governmental units, within one hundred and eighty (180) days after the date of the order for relief, unless otherwise ordered by the court.” Trustee further points out that there were three opportunities to file a proof of claim yet PREPA failed to do so. These three instances were: (1) The first deadline was established by a “Notice of Chapter 11 Bankruptcy" } ]

[ { "docid": "15722444", "title": "", "text": "case because pursuant to Fed. R. Bankr.P. 1019(3), all claims timely filed in Debtor’s chapter 11 case were deemed filed in Debtor’s chapter 7 case. Summarily, because PREPA did not have to file a new proof of claim in Debtor’s chapter 7 case, PREPA contends that it had timely filed a proof of claim during Debtor’s chapter 11 case and thus this instant proof of claim was deemed filed in Debtor’s chapter 7 case. PREPA further contends that it could not have checked the box for a § 503(b)(9) claim since it was non-ejdstent on any versions of the B-10 forms available at the time of the filing was made. II. Discussion and Analysis After reviewing the arguments raised by the parties and the relevant law, the court finds that, in the context of this current inquiry, the electricity provided by PREPA is a “service” and thus does not fall under 11 U.S.C. § 503(b)(9). As such, PREPA is not entitled to a prepetition expense. Although the Trustee focuses her rebuttal on section 501 and Rule 3003, the weight of this matter and the relevant ensuing analysis falls squarely on section 503. An examination of the docket of this case reveals that PREPA did timely file a proof of claim covering the amounts for which PREPA now seeks administrative expense priority in Claim number 94-1 and 94-2. Moreover, as PREPA points out, 11 U.S.C. § 503(b)(9) does not mandate a filing deadline. Section 503(b)(9), which was enacted as part of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”), allows creditors to receive priority claims for the value of goods received by a debtor in the ordinary course of the debtor’s business within the twenty (20) days preceding the commencement of the bankruptcy case. 11 U.S.C. § 503(b)(9). Thus, to qualify for administrative priority treatment, a claim must be: (1) for goods, (2) that are received by the debtor within the twenty (20) days prior to the bankruptcy filing, and (3) that are sold to the debtor in the ordinary course of its business. It is well settled" }, { "docid": "15728420", "title": "", "text": "its delivery are not. Electricity can be provided by integrated utilities that generate, sell, deliver and service, or by entities like Hudson, which in today’s deregulated market makes money simply by buying electricity from generators at a lower price than that at which it sells to customers but is otherwise “hands-off,” or by entities that are somewhere in between. Each may have different arrangements with others in the supply chain from generator to consumer. If Hudson’s theory that electricity is always identified at the customer’s meter does not hold up, individualized assessment of these arrangements may be necessary to determine whether the electricity sold in a given case is a “good.” Thus, the court indicated that if the nature of electricity is not sufficiently uniform to support a rule applicable in all cases, it might look to the facts and circumstances of each case to decide whether electricity is a good. 2. Courts holding that electricity is not a good Recently, in the case of In re PMC Marketing Corp., the bankruptcy court for the District of Puerto Rico held that in order to determine whether electricity constitutes a good under section 503(b)(9) the court “must carry out an inquiry into the unique facts of each case and thus this analysis cannot be determined without taking into consideration the totality of circumstances of all the relevant facts.” The focus of the PMC Marketing Corp. court’s inquiry was not whether electricity is, in and of itself, a good. Rather, the court considered the relationship between the provider of electricity, Puerto Rico Electric Power Authority (PREPA), and its customer, the debtor. That relationship was governed under section 366 of the Bankruptcy Code. “[Section 366] gives debtors protection from a cut-off of service by a utility because of the filing of a bankruptcy case. This section is intended to cover utilities that have some special position with respect to the debtor, such as an electric company, gas supplier, or telephone company that is a monopoly in the area so that the debtor cannot easily obtain comparable service from another utility.” The court concluded" }, { "docid": "15722436", "title": "", "text": "to March 17, 2009, Debtor received from PREPA electricity sold by PREPA to Debtor in the ordinary course of Debtor’s business. The services amounted to a total value of $154,023.52 and at least $89,336.42 from the total value remains unpaid by Debtor. PREPA contends that the difference between the two amounts is the result of the application of the payments made by Debtor’s prepetition surety pursuant to the prepetition bond issued by said security to jointly guarantee payment by Debtor of its obligations to PREPA. PREPA further argues that the electricity supplied by PREPA to Debtor is moveable and was identifiable at the time that it passed through Debtor’s meters. PREPA argues that pursuant to 11 U.S.C. § 503(b)(9), “After notice and a hearing, there shall be allowed, administrative expenses ... [for] the value of any goods received by the debtor within 20 days before the date of commencement of a case under this title in which the goods have been sold to the debtor in the ordinary course of such debt- or’s business.” Citing In re Grede Foundries, Inc., 435 B.R. 593, 595 (Bkrtcy.W.D.Wis.2010). PREPA further points out that when courts are determining if a thing is a “good” for purposes of section 503(b)(9), courts apply the definition of “good” from the Uniform Commercial Code (the “UCC”). Therefore, because the UCC defines “goods” as “all things that are moveable at the time of identification to a contract for sale,” electricity is a “good” under the UCC definition of such term. Further, because electricity is identifiable to the consumer’s contract at the time it is metered at the consumer’s place and is moveable at the time that it is metered and afterwards, a utility that provides electricity to a debtor during the twenty days before the commencement of debtor’s bankruptcy case is entitled to administrative expense priority for the invoiced amount. Summarily, since PREPA supplied electricity to Debtor, in the Debtor’s ordinary course of business, during the twenty (20) day period prior to the commencement of Debtor’s bankruptcy case on March 18, 2009, PREPA is entitled to an administrative expense" }, { "docid": "19142899", "title": "", "text": "is used in this section of the Bankruptcy Code. The Court is aware of only two other Bankruptcy Court decisions regarding the meaning of “goods” in § 503(b)(9). In In re Samaritan Alliance, LLC, No. 07-50735, 2008 WL 2520107 (Bankr. E.D.Ky. June 20, 2008), the creditor sought allowance of an administrative expense claim for the value of electricity provided to the debtor during the 20 days before the bankruptcy case was filed. The debtor argued that the creditor provided “services” and not “goods” as required by § 503(b)(9). The creditor pointed to a number of state law decisions under non-bankruptcy law such as products liability law, that found that electricity is considered a product rather than a service. The debtor countered by arguing that electricity does not constitute “goods” under the Uniform Commercial Code because it is not specifically identifiable before it passes through a meter. Noting that the courts are divided on the general issue of whether electricity constitutes goods, the court found the debtor’s argument more compelling, holding that for purposes of § 503(b)(9), electricity is “more properly characterized as a ‘service.’ ” Id. at *4. As a result, the court disallowed the creditor’s § 503(b)(9) request. In another unreported decision, In re Deer, No. 06-02460, slip op. at 2 (Bankr. S.D.Miss. June 14, 2007) (Debtors’ Eighth Omnibus Objection, Ex. D, docket entry # 2453), the debtor purchased advertising from Yellow Book, which filed a § 503(b)(9) claim. The court first noted the absence of a definition of “goods” in the Bankruptcy Code. The court then applied the Uniform Commercial Code definition of “goods,” concluding that “advertising does not constitute a good as defined by Article 9” nor a “sale of goods under Article 2” of the Uniform Commercial Code. Id. at 4 (citations omitted). In addi tion, the court also observed that § 503(b)(9) was adopted to “operate[] in conjunction with [ ] § -546(c)(2) to provide administrative expense treatment to a creditor with reclamation rights even if the seller fails to make a demand.” Id. (citations omitted). However, Yellow Book had “made no assertion that it" }, { "docid": "15728421", "title": "", "text": "District of Puerto Rico held that in order to determine whether electricity constitutes a good under section 503(b)(9) the court “must carry out an inquiry into the unique facts of each case and thus this analysis cannot be determined without taking into consideration the totality of circumstances of all the relevant facts.” The focus of the PMC Marketing Corp. court’s inquiry was not whether electricity is, in and of itself, a good. Rather, the court considered the relationship between the provider of electricity, Puerto Rico Electric Power Authority (PREPA), and its customer, the debtor. That relationship was governed under section 366 of the Bankruptcy Code. “[Section 366] gives debtors protection from a cut-off of service by a utility because of the filing of a bankruptcy case. This section is intended to cover utilities that have some special position with respect to the debtor, such as an electric company, gas supplier, or telephone company that is a monopoly in the area so that the debtor cannot easily obtain comparable service from another utility.” The court concluded that PREPA is a utility provider because: “(1) it is subject to governmental regulation as are traditional utilities; (2) PREPA does fit the ordinary definition of a utility as it does enjoy a ‘special relationship’ with the Debtor (PREPA is the sole provider of electricity in Puerto Rico) and it does have a monopoly; and (3) PREPA is a government owned corporation of Puerto Rico.” Applying section 366, the PMC Marketing court concluded that PREPA was providing “utility service” rather than a good under the U.C.C. and section 503(b)(9). As such, PREPA was not entitled to an administrative priority claim. In the ease of In re Pilgrim’s Pride Corp., the Texas bankruptcy court held that electricity was not a good. The court ultimately relied on the plain meaning of the U.C.C. and the Bankruptcy Code; but, it started its analysis by rejecting three arguments made by the local utility cooperative, which the court defined as the “Electricity Provider,” in favor of considering electricity to be a good. First, the Electricity Provider asserted that electricity is" }, { "docid": "15722441", "title": "", "text": "668]. The court granted PREPA’s Motion for Allowance of Administrative Claim on April 15, 2010 [Dkt. No. 710], That Motion filed on March 29, 2010 [Dkt. No. 668] makes no mention of this new requested administrative claim. Trustee further points out that although Fed.R.Bankr.P., Rule 3003(c)(3) and § 503(a) provide that the court may extend the time within which proofs of claim or interest may be filed, this extension must be based on “cause shown” such as excusable neglect. Trustee argues that PREPA has failed to show excusable neglect because PREPA received the notice of the filing of the case along with all creditors. Conclusively, the Trustee asks the court to deny PREPA’s Motion for Prepetition Administrative Expenses Pursuant to 11 U.S.C. § 503(b)(9) as a belated proof of claim. The Trustee also contends that PREPA did not check the required box for a § 503(b)(9) claim in the proof of claim form, another reason to deny the claim. In response to the Trustee’s Opposition, PREPA argues that its Motion is not a proof of claim but instead is an administrative expense priority for the value of the electricity received by Debtor during the twenty (20) day period prior to the date of Debtor’s bankruptcy petition pursuant to 11 U.S.C. § 503(b)(9). PREPA further argues that its administrative expense claim is not delayed because it is not filing a proof of claim. Regardless, PREPA argues that it did timely file a proof of claim covering the amounts for which PREPA now seeks administrative expense priority under Claims number 94-1 and 94-2. PREPA also points out that when this Court set April 20, 2010 as the bar date for filing administrative expense claims in Debtor’s chapter 11 case, this deadline referenced only four agenda items. More specifically, the following: (1) Debtor’s Motions to assume certain executory contracts and/or unexpired leases and the related motions; (2) the Application for Compensation by the Secretary of the Unsecured Creditor’s Committee; (3) any remaining matter or objection to Debtor’s Motion to Assume Certain other Leases; and (4) Scriptpro Caribbean, Inc.’s Motion for Allowance of Administrative" }, { "docid": "15728422", "title": "", "text": "that PREPA is a utility provider because: “(1) it is subject to governmental regulation as are traditional utilities; (2) PREPA does fit the ordinary definition of a utility as it does enjoy a ‘special relationship’ with the Debtor (PREPA is the sole provider of electricity in Puerto Rico) and it does have a monopoly; and (3) PREPA is a government owned corporation of Puerto Rico.” Applying section 366, the PMC Marketing court concluded that PREPA was providing “utility service” rather than a good under the U.C.C. and section 503(b)(9). As such, PREPA was not entitled to an administrative priority claim. In the ease of In re Pilgrim’s Pride Corp., the Texas bankruptcy court held that electricity was not a good. The court ultimately relied on the plain meaning of the U.C.C. and the Bankruptcy Code; but, it started its analysis by rejecting three arguments made by the local utility cooperative, which the court defined as the “Electricity Provider,” in favor of considering electricity to be a good. First, the Electricity Provider asserted that electricity is a good because the United States Supreme Court has ruled that “electric energy thus produced, constitute[s] property.” The court rejected the argument on the basis that everything that is property is not a good. “For example, one can have property rights in trademarks, patents, and copyrights, but no one would argue that intellectual property falls under the [U.C.C.] definition of ‘goods.’ ” Second, the Electricity Provider cited to a number of cases finding electricity to be a “product,” which Black’s Law Dictionary defines as “something that is distributed commercially for use or consumption.” As above, the court rejected the argument because there are “many things that are distributed commercially for use or consumption that would not qualify as “goods” under the UCC.” The court cited to the example of a television program that is broadcast commercially and consumed through viewing as not constituting a good. “The television show itself has no identifi able form; it is merely intellectual property. It can only be “moved” physically if it is encoded in a digital or analog form." }, { "docid": "15722435", "title": "", "text": "OPINION & ORDER BRIAN K. TESTER, Bankruptcy Judge. Before this court is Creditor’s Motion for Prepetition Administrative Expenses Pursuant to 11 U.S.C. § 503(b)(9) [Dkt. No. 1164]; Trustee’s Opposition to Creditor’s Motion for Prepetition Administrative Expenses [Dkt. No. 1171]; and Creditor’s Reply to Trustee’s Opposition [Dkt. No. 1175]. For the reasons set forth below, Creditor’s Motion for Prepetition Administrative Expenses Pursuant to 11 U.S.C. § 503(b)(9) is DENIED. I. Factual Background Debtor, PMC Marketing Corporation, filed a voluntary Chapter 11 bankruptcy case on March 18, 2009. Debtor’s Chapter 11 bankruptcy case was converted to Chapter 7 on May 21, 2010. Noreen Wis-covitch Rentas was appointed as the Chapter 7 trustee on the same day. Subsequently, creditor P.R. Electric Power Authority (“PREPA”) filed a Motion for Prepetition Administrative Expenses Pursuant to 11 U.S.C. § 503(b)(9). In the Motion presently before the Court, PREPA argues that it is entitled to prepetition administrative expenses. PREPA points out that during the twenty (20) days before the date of the commencement of Debtor’s bankruptcy case, the period of February 26 to March 17, 2009, Debtor received from PREPA electricity sold by PREPA to Debtor in the ordinary course of Debtor’s business. The services amounted to a total value of $154,023.52 and at least $89,336.42 from the total value remains unpaid by Debtor. PREPA contends that the difference between the two amounts is the result of the application of the payments made by Debtor’s prepetition surety pursuant to the prepetition bond issued by said security to jointly guarantee payment by Debtor of its obligations to PREPA. PREPA further argues that the electricity supplied by PREPA to Debtor is moveable and was identifiable at the time that it passed through Debtor’s meters. PREPA argues that pursuant to 11 U.S.C. § 503(b)(9), “After notice and a hearing, there shall be allowed, administrative expenses ... [for] the value of any goods received by the debtor within 20 days before the date of commencement of a case under this title in which the goods have been sold to the debtor in the ordinary course of such debt- or’s business.” Citing" }, { "docid": "15722442", "title": "", "text": "claim but instead is an administrative expense priority for the value of the electricity received by Debtor during the twenty (20) day period prior to the date of Debtor’s bankruptcy petition pursuant to 11 U.S.C. § 503(b)(9). PREPA further argues that its administrative expense claim is not delayed because it is not filing a proof of claim. Regardless, PREPA argues that it did timely file a proof of claim covering the amounts for which PREPA now seeks administrative expense priority under Claims number 94-1 and 94-2. PREPA also points out that when this Court set April 20, 2010 as the bar date for filing administrative expense claims in Debtor’s chapter 11 case, this deadline referenced only four agenda items. More specifically, the following: (1) Debtor’s Motions to assume certain executory contracts and/or unexpired leases and the related motions; (2) the Application for Compensation by the Secretary of the Unsecured Creditor’s Committee; (3) any remaining matter or objection to Debtor’s Motion to Assume Certain other Leases; and (4) Scriptpro Caribbean, Inc.’s Motion for Allowance of Administrative Expenses. PREPA further argues that April 20, 2010, cannot be the bar date for filing all administrative expenses in Debtor’s chapter 11 case because Debtor’s case continued until May 20, 2010, when the case was converted to chapter 7. Therefore, all expenses accrued by Debtor between April 20 and May 19, 2010 that comply with the requirements of 11 U.S.C. § 503(b) would be entitled to administrative expense priority because these creditors could not have been expected to file their claims on or before April 20, 2010. Even assuming arguendo that the court set April 20, 2010 as the bar date for filing all administrative expense claims and that the statement contained in the Minutes of the February 19, 2010 hearing is sufficient and adequate notice of said bar date, PREPA contends that its administrative expense claim at issue did not arise in Debtor’s chapter 11 case but rather when Debtor’s bankruptcy case was converted from chapter 11 to chapter 7. Therefore, PREPA was entitled to file its administrative expense claim in Debtor’s chapter 7" }, { "docid": "15722438", "title": "", "text": "claim for the value of that electricity that remains unpaid pursuant to 11 U.S.C. § 503(b)(9) in the amount of $89,336.42. In opposition, Trustee argues that PREPA’s Motion is actually a belated proof of claim in “disguise,” which cannot be filed three years after the deadline set by this Court. Pursuant to Fed.R.Bankr. P., Rule 3003, the Court can set the deadlines to file proof of claims pursuant to § 501 of the Bankruptcy Code. Under the then active Local Rule 3003-1, “Proofs of claim in Chapter 11 cases must be filed: (a) on or before ninety (90) days from the date first set for the § 341 meeting of creditors; and, (b) for governmental units, within one hundred and eighty (180) days after the date of the order for relief, unless otherwise ordered by the court.” Trustee further points out that there were three opportunities to file a proof of claim yet PREPA failed to do so. These three instances were: (1) The first deadline was established by a “Notice of Chapter 11 Bankruptcy Case, Meeting of Creditors, & Deadlines” sent by the Court on March 20, 2009. Pursuant to said Notice, the bar dates were set as July 27, 2009 for regular creditors and September 16, 2009 for governmental units. See Dkt. 8. This Court gave notice of said bar dates to all creditors and parties in this case, including PREPA, on March 22, 2009. See Certificate of Service at Dkt. 9. (2) The second deadline was established by an Order entered by this Court on February 19, 2010. Dkt. 588/ 663. In such Order, this Court stated that “[t]he cut-off date for administrative claims is 4/20/2010.” See Dkt. 588-p. 3, ¶ 11; Dkt. 663-p. 3, ¶ 11. This Court gave notice of said bar dates to all creditors and parties in this case, including the Movant who was notified through CM/ ECF on February 19, 2010, and March 26, 2010 through its counsel and twice by mail. See Certificate of Service at Dkt. 666. (3) The third deadline that established the filing of proof of claims was" }, { "docid": "15722445", "title": "", "text": "Rule 3003, the weight of this matter and the relevant ensuing analysis falls squarely on section 503. An examination of the docket of this case reveals that PREPA did timely file a proof of claim covering the amounts for which PREPA now seeks administrative expense priority in Claim number 94-1 and 94-2. Moreover, as PREPA points out, 11 U.S.C. § 503(b)(9) does not mandate a filing deadline. Section 503(b)(9), which was enacted as part of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”), allows creditors to receive priority claims for the value of goods received by a debtor in the ordinary course of the debtor’s business within the twenty (20) days preceding the commencement of the bankruptcy case. 11 U.S.C. § 503(b)(9). Thus, to qualify for administrative priority treatment, a claim must be: (1) for goods, (2) that are received by the debtor within the twenty (20) days prior to the bankruptcy filing, and (3) that are sold to the debtor in the ordinary course of its business. It is well settled that only “goods” are eligible for this priority treatment, not “services.” In this instant case, there is no dispute that PREPA provided electricity to Debtor within the twenty (20) day period preceding the bankruptcy filing, and that the Debtor purchased that electricity in the ordinary course of its business. Thus, the only issue is whether the electricity provided by PREPA falls within the definition of “goods” for purposes of section 503(b)(9). A bankruptcy court in this Circuit has reviewed this issue in a different context in In re Erving Indus., Inc., 432 B.R. 354, 365 (Bankr.D.Mass.2010). Using the “goods” definition under Section 2-105(1) of the UCC, Judge Boroff found electricity is a “good” because of its movability at the time of identification of the contract between Debtor and the electric provider company. Id. at 366-267. In reaching such decision, the electric provider in that case argued that its “service” was different from the traditional “service” functions commonly associated with electric utilities. In describing its “service” while contrasting a traditional “service,” the electric company claimed that" }, { "docid": "15728442", "title": "", "text": "terms are not mutually exclusive. “A utility provider may provide both goods and services within the meaning of each section. In sum, the rights afforded by [section] 503(b)(9) to a seller of goods are not dependent either explicitly or implicitly upon the availability of other remedies under the Code for the seller.” This Court agrees. Section 366 of the Bankruptcy Code cannot control whether something is a good under the U.C.C. and, by extension, section 503(b)(9). Indeed, there are things such as natural gas that are specifically identified in the U.C.C. as goods but which are services under section 366. The filing of a bankruptcy petition does not change the nature of what the utility is selling. Electricity is electricity. Its qualification for administrative expense treatment under section 503(b)(9) is a completely separate issue from its treatment under section 366 of the Bankruptcy Code. Thus, as with section 546(c), section 366 is irrelevant for purposes of determining whether electricity is a good under section 503(b)(9). e. Should the nature of the parties’ relationship, e.g., is the claimant acting as a “public utility,” determine whether electricity is a good or a service? The PMC Marketing Corp. court approached the question whether electricity is a good from a different angle. It held that the relationship between the debtor and Puerto Rico Electric Power Authority (PREPA), which was clearly one between a customer and a utility, was governed as a service by section 366 of the Code. As a service under section 366, the court held that electricity could not be a good under section 503(b)(9). In addition, the Great Atlantic & Pacific Tea Co. court held that if the record after remand was insufficient to support a rule applicable in all cases, individualized assessment of the parties’ business arrangements may be necessary to determine whether the electricity sold in a given case is a good. But, consider that electricity can be bought and sold at a wholesale level. The buyer is not an end user but, rather, sells the electricity to another wholesaler or a consumer. If one makes the good/service determination" }, { "docid": "15722443", "title": "", "text": "Expenses. PREPA further argues that April 20, 2010, cannot be the bar date for filing all administrative expenses in Debtor’s chapter 11 case because Debtor’s case continued until May 20, 2010, when the case was converted to chapter 7. Therefore, all expenses accrued by Debtor between April 20 and May 19, 2010 that comply with the requirements of 11 U.S.C. § 503(b) would be entitled to administrative expense priority because these creditors could not have been expected to file their claims on or before April 20, 2010. Even assuming arguendo that the court set April 20, 2010 as the bar date for filing all administrative expense claims and that the statement contained in the Minutes of the February 19, 2010 hearing is sufficient and adequate notice of said bar date, PREPA contends that its administrative expense claim at issue did not arise in Debtor’s chapter 11 case but rather when Debtor’s bankruptcy case was converted from chapter 11 to chapter 7. Therefore, PREPA was entitled to file its administrative expense claim in Debtor’s chapter 7 case because pursuant to Fed. R. Bankr.P. 1019(3), all claims timely filed in Debtor’s chapter 11 case were deemed filed in Debtor’s chapter 7 case. Summarily, because PREPA did not have to file a new proof of claim in Debtor’s chapter 7 case, PREPA contends that it had timely filed a proof of claim during Debtor’s chapter 11 case and thus this instant proof of claim was deemed filed in Debtor’s chapter 7 case. PREPA further contends that it could not have checked the box for a § 503(b)(9) claim since it was non-ejdstent on any versions of the B-10 forms available at the time of the filing was made. II. Discussion and Analysis After reviewing the arguments raised by the parties and the relevant law, the court finds that, in the context of this current inquiry, the electricity provided by PREPA is a “service” and thus does not fall under 11 U.S.C. § 503(b)(9). As such, PREPA is not entitled to a prepetition expense. Although the Trustee focuses her rebuttal on section 501 and" }, { "docid": "15722452", "title": "", "text": "(such as light, power, or water) provided by a public utility.” Merriam-Webster’s Collegiate Dictionary, (10th ed. 2001). The term “public utility” is defined as “a business organization (as an electric company) performing a public service and subject to special governmental regulation.” Id. Further guidance is provided by the legislative history of the provision. See Darby v. Time Warner Cable, Inc. (In re Darby), 470 F.3d 573, 574 (5th Cir.2006). Some courts, after reviewing this legislative history, have concluded that the term “utility” ordinarily refers to a “business organization (as an electric company) performing a public service and subject to special governmental regulations,” that has “some special position with respect to the debtor,” and has a “monopoly in the area so that the debtor cannot easily obtain comparable service from another.” One Stop Realtour Place, Inc. v. Allegiance Telecom, Inc. (In re One Stop Realtour Place, Inc.), 268 B.R. 430, 435 (Bankr.E.D.Pa.2001). Under this definition, PREPA is a utility provider because: (1) it is subject to governmental regulation as are traditional utilities; (2) PREPA does fit the ordinary definition of a utility as it does enjoy a “special relationship” with the Debtor (PREPA is the sole provider of electricity in Puerto Rico) and it does have a monopoly; and (3) PREPA is a government owned corporation of Puerto Rico. III. Conclusion This Court realizes that the Trustee raised other issues in her Reply, however, this Court, for judicial economy purposes, will not delve unnecessarily into these issues not relevant to the pertinent inquiry. Regardless, because PREPA provided a “service” rather than a “good” to Debtor, PREPA is not entitled to prepetition priority expenses pursuant to 11 U.S.C. § 503(b)(9). WHEREFORE, Creditor’s Motion for Prepetition Administrative Expenses Pursuant to 11 U.S.C. § 503(b)(9) is DENIED. SO ORDERED. OPINION & ORDER Before the court is Creditor P.R. Electric Power Authority’s (“PREPA”) Motion to Alter or Amend Judgment [Dkt. No. 1181] and Trustee’s Opposition to Creditor’s Motion for Reconsideration [Dkt. No. 1184]. For the reasons stated herein, PREPA’s Motion to Alter or Amend Judgment is hereby DENIED. Courts often entertain motions for reconsideration under" }, { "docid": "15728443", "title": "", "text": "the claimant acting as a “public utility,” determine whether electricity is a good or a service? The PMC Marketing Corp. court approached the question whether electricity is a good from a different angle. It held that the relationship between the debtor and Puerto Rico Electric Power Authority (PREPA), which was clearly one between a customer and a utility, was governed as a service by section 366 of the Code. As a service under section 366, the court held that electricity could not be a good under section 503(b)(9). In addition, the Great Atlantic & Pacific Tea Co. court held that if the record after remand was insufficient to support a rule applicable in all cases, individualized assessment of the parties’ business arrangements may be necessary to determine whether the electricity sold in a given case is a good. But, consider that electricity can be bought and sold at a wholesale level. The buyer is not an end user but, rather, sells the electricity to another wholesaler or a consumer. If one makes the good/service determination based on the parties’ relationship, then the electric cur rent could travel from origination to use, starting as a good and ending as a service. Indeed, since section 366 is unique to the Bankruptcy Code, whether the wholesaler providing electricity to the consumer is delivering a good or a service might depend on whether the consumer is in bankruptcy. The problems with this approach are self evident. The proper course is to determine whether electricity, in and of itself, is a good. t Should section 503(b)(9) be strictly construed because it provides an otherwise unsecured creditor with an administrative claim and, if so, to what extent? The Pilgrim’s Pride court held that finding electricity is a service and not a good under section 503(b)(9) is consistent with public policy under the Bankruptcy Code that “provisions of the Code granting claims priority are to be narrowly construed.” In addition, the Great Atlantic & Pacific Tea Co. court noted that the lower court had made its determination that electricity is not a good based, in part, on" }, { "docid": "15722457", "title": "", "text": "facts or law in support of reversing the prior decision. Rather, PREPA misconstrues the basis of the actions taken by the court. Further, PREPA contends that this Court erred in its previous determination of energy as a service rather than a good by mirroring previous arguments already considered by this Court. After considering arguments from both parties, this Court finds that Plaintiff does not present this Court with adequate reasoning to justify good cause nor a special circumstance in demonstrating that the court’s previous reasoning constituted a manifest error of law. Further, Plaintiff fails to present newly discovered evidence nor any intervening change in law. This Court emphasizes the following as laid out in the original Opinion & Order: Section 503(b)(9), which was enacted as part of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”), allows creditors to receive priority claims for the value of goods received by a debtor in the ordinary course of the debtor’s business within the twenty (20) days preceding the commencement of the bankruptcy case. 11 U.S.C. § 503(b)(9). Thus, to qualify for administrative priority treatment, a claim must be: (1) for goods, (2) that are received by the debtor within the twenty (20) days prior to the bankruptcy filing, and (3) that are sold to the debtor in the ordinary course of its business. It is well settled that only “goods” are eligible for this priority treatment, not “services.” In this instant case, there is no dispute that PREPA provided electricity to Debtor within the twenty (20) day period preceding the bankruptcy filing, and that the Debtor purchased that electricity in the ordinary course of its business. Thus, the only issue is whether the electricity provided by PREPA falls within the definition of “goods” for purposes of section 503(b)(9). In re PMC Mktg. Corp, 09-02048, 2013 WL 4735736 (Bankr.D.P.R. Sept. 4, 2013). In the Motion presently before the court, PREPA merely rehashes old arguments disputing the law previously cited by this Court. This behavior should be deterred and does not warrant reconsideration by the court. Rather, this behavior is the reason" }, { "docid": "15722440", "title": "", "text": "notified when the case was converted to Chapter 7. The new bar dates were set as September 28, 2010 for regular creditors, and November 17, 2010 for governmental units. See Dkt. 866. The Court gave notice of said bar dates to all creditors and parties in this case, including the Movant who was notified through CM/ECF on May 21, 2010 through its counsel and twice by mail. See Certificate of Service at Dkt. 873. Trustee contends that because PREPA had ample opportunities to file this instant claim, and PREPA on several occasions filed other similar claims, PREPA should be barred from filing this particular claim. Trustee points out several instances to which PREPA had filed such similar claims: (1) PREPA filed a regular proof of claim in this case on July 7, 2009. See Claim 94-1. PREPA later amended its claim on January 20, 2010. See Claim 94-2. (2) PREPA also filed a “Motion for Allowance of Administrative Claim” on March 29, 2010 in response to this Court’s Order of February 19, 2010 [Dkt. No. 668]. The court granted PREPA’s Motion for Allowance of Administrative Claim on April 15, 2010 [Dkt. No. 710], That Motion filed on March 29, 2010 [Dkt. No. 668] makes no mention of this new requested administrative claim. Trustee further points out that although Fed.R.Bankr.P., Rule 3003(c)(3) and § 503(a) provide that the court may extend the time within which proofs of claim or interest may be filed, this extension must be based on “cause shown” such as excusable neglect. Trustee argues that PREPA has failed to show excusable neglect because PREPA received the notice of the filing of the case along with all creditors. Conclusively, the Trustee asks the court to deny PREPA’s Motion for Prepetition Administrative Expenses Pursuant to 11 U.S.C. § 503(b)(9) as a belated proof of claim. The Trustee also contends that PREPA did not check the required box for a § 503(b)(9) claim in the proof of claim form, another reason to deny the claim. In response to the Trustee’s Opposition, PREPA argues that its Motion is not a proof of" }, { "docid": "15722446", "title": "", "text": "that only “goods” are eligible for this priority treatment, not “services.” In this instant case, there is no dispute that PREPA provided electricity to Debtor within the twenty (20) day period preceding the bankruptcy filing, and that the Debtor purchased that electricity in the ordinary course of its business. Thus, the only issue is whether the electricity provided by PREPA falls within the definition of “goods” for purposes of section 503(b)(9). A bankruptcy court in this Circuit has reviewed this issue in a different context in In re Erving Indus., Inc., 432 B.R. 354, 365 (Bankr.D.Mass.2010). Using the “goods” definition under Section 2-105(1) of the UCC, Judge Boroff found electricity is a “good” because of its movability at the time of identification of the contract between Debtor and the electric provider company. Id. at 366-267. In reaching such decision, the electric provider in that case argued that its “service” was different from the traditional “service” functions commonly associated with electric utilities. In describing its “service” while contrasting a traditional “service,” the electric company claimed that it: “... differentiates between the delivery of electricity as a service and the sale of electricity as the sale of goods. While regulated utilities are still responsible for the ultimate delivery of electricity to customers, [that the energy company] has no role in that delivery and is involved solely in the sale of electricity as a ‘competitive supplier.’ ” Id. at 358. Further, the electric company stated that it is not a utility provider because it was not listed under the chart of electric utility providers maintained by the Commonwealth of Massachusetts and that it is not a traditional provider of utilities because “it does not have a monopoly or exclusive service or franchise area, is not regulated by the government, and is subject to competition from a number of available alternative sources of electricity.” Id. Other courts have agreed with Judge Bo-roff in holding that electricity is a “good.” Enron Power Marketing, Inc. v. Nevada Power Co., 2004 WL 2290486, *2 (S.D.N.Y. Oct. 12, 2004) (applying UCC Article 2 to sale of electricity); In" }, { "docid": "15722458", "title": "", "text": "§ 503(b)(9). Thus, to qualify for administrative priority treatment, a claim must be: (1) for goods, (2) that are received by the debtor within the twenty (20) days prior to the bankruptcy filing, and (3) that are sold to the debtor in the ordinary course of its business. It is well settled that only “goods” are eligible for this priority treatment, not “services.” In this instant case, there is no dispute that PREPA provided electricity to Debtor within the twenty (20) day period preceding the bankruptcy filing, and that the Debtor purchased that electricity in the ordinary course of its business. Thus, the only issue is whether the electricity provided by PREPA falls within the definition of “goods” for purposes of section 503(b)(9). In re PMC Mktg. Corp, 09-02048, 2013 WL 4735736 (Bankr.D.P.R. Sept. 4, 2013). In the Motion presently before the court, PREPA merely rehashes old arguments disputing the law previously cited by this Court. This behavior should be deterred and does not warrant reconsideration by the court. Rather, this behavior is the reason why courts have stressed the importance of judicial economy. See e.g., In re Efron, 495 B.R. 166, 180 (Bankr.D.P.R.2013) (quoting In re Aledria Corp., 10-12310 BKT, 2013 WL 1619998 (Bankr.D.P.R. Apr. 15, 2013)). WHEREFORE, IT IS ORDERED that PREPA’s Motion to Alter or Amend Judgment be, and it hereby is, DENIED. SO ORDERED. . See In re Grede Foundries, Inc., 435 B.R. 593 (Bankr.W.D.Wisc.2010); In re Circuit City Stores, Inc., 416 B.R. 531, 535 (Bankr. E.D.Va.2009) (\"Consistent with the plain language of the statute, allowed administrative expenses under § 503(b)(9) should only be for claims arising from the sale and delivery of goods to the Debtors, not from the provision of services”); Brown & Cole Stores, LLC v. Associated Grocers, Inc. (In re Brown & Cole Stores, LLC), 375 B.R. 873, 878 (9th Cir. BAP 2007) (“By the plain terms of the statute, a vendor's right to assert an administrative claim is limited [in that] the vendor must have provided goods (not services).”); In re Goody’s Family Clothing, Inc., 401 B.R. 131, 135 (Bankr.D.Del.2009) (\"[B]ased" }, { "docid": "15722453", "title": "", "text": "the ordinary definition of a utility as it does enjoy a “special relationship” with the Debtor (PREPA is the sole provider of electricity in Puerto Rico) and it does have a monopoly; and (3) PREPA is a government owned corporation of Puerto Rico. III. Conclusion This Court realizes that the Trustee raised other issues in her Reply, however, this Court, for judicial economy purposes, will not delve unnecessarily into these issues not relevant to the pertinent inquiry. Regardless, because PREPA provided a “service” rather than a “good” to Debtor, PREPA is not entitled to prepetition priority expenses pursuant to 11 U.S.C. § 503(b)(9). WHEREFORE, Creditor’s Motion for Prepetition Administrative Expenses Pursuant to 11 U.S.C. § 503(b)(9) is DENIED. SO ORDERED. OPINION & ORDER Before the court is Creditor P.R. Electric Power Authority’s (“PREPA”) Motion to Alter or Amend Judgment [Dkt. No. 1181] and Trustee’s Opposition to Creditor’s Motion for Reconsideration [Dkt. No. 1184]. For the reasons stated herein, PREPA’s Motion to Alter or Amend Judgment is hereby DENIED. Courts often entertain motions for reconsideration under either Rules 59 or 60 of the Federal Rules of Civil Procedure, depending on the time when such motion is served. See Perez-Perez v. Popular Leasing Rental, Inc., 993 F.2d 281, 284 (1st Cir.1993). The First Circuit has recognized that “[a] motion for reconsideration does not provide a vehicle for a party to undo its own procedural failures and it certainly does not allow a party to introduce new evidence or advance new arguments that could or should have been presented to the district court prior to judgment.” Marks 3-Zet-Ernst Marks GMBH & Co. KG v. Presstek, Inc., 455 F.3d 7, 15-16 (1st Cir.2006); In re PMC Mktg. Corp., 09-02048, 2013 WL 4602763 (Bankr.D.P.R. Aug. 29, 2013). Accordingly, a Rule 59(e) motion for reconsideration usually cannot be granted absent highly unusual circumstances, unless the court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law. See Prescott v. Higgins, 538 F.3d 32, 45 (1st Cir.2008); see also Rivera Surillo & Co. v. Falconer Glass Indus.," } ]

[ { "docid": "21571165", "title": "", "text": "“the residual functional capacity to perform the physical exertion and non-exertional requirements of work except for lifting and carrying exceeding the light exertional level, performing complex tasks and tolerating extraordinary stress.” He found that appellant’s residual functional capacity for the full range of light work was reduced only slightly by her non-exertional limitations and, applying the grids, concluded that she was not disabled. Appellant contends that the AU’s use of the grids to arrive at a conclusion of not disabled was inappropriate because her pain, inability to tolerate stress, reduced ability to pay attention, concentrate, and exercise judgment, and her borderline mental retardation significantly compromise her ability to perform a full range of light work. The Secretary, in response, contends that appellant’s exertional and non-exertional limitations, even when viewed in combination, are not severe enough to prevent a full range of light work; therefore, the AU did not err in applying the grids. The claimant has no relevant work history. Thus, if the Secretary is able successfully to point to work in the national economy that appellant can perform and appellant cannot demonstrate her inability to perform such work, disability will not be found. See Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir.1987). An AU has the obligation of developing a full and fair record regarding the vocational opportunities available to a claimant. See Welch v. Bowen, 854 F.2d 436, 440 (11th Cir.1988). The AU must articulate specific jobs that the claimant is able to perform, and this finding must be supported by substantial evidence, not mere intuition or conjecture. See Cowart v. Schweiker, 662 F.2d 731, 736 (11th Cir.1981). In appropriate circumstances, the grids may be used in lieu of vocational testimony. See Gibson v. Heckler, 762 F.2d 1516, 1520 (11th Cir.1985). However, “ ‘[ejxclusive reliance on the grids is not appropriate either when the claimant is unable to perform a full range of work at a given residual functional level or when a claimant has a non-exertional impairment that significantly limits basic work skills.’ ” Walker v. Bowen, 826 F.2d 996, 1002-03 (11th Cir.1987); (quoting Francis v." } ]

[ { "docid": "22406793", "title": "", "text": "before considering any evidence in addition to the grids. See, e.g., Bapp, 802 F.2d at 606 (“Upon remand the ALJ must reevaluate whether the Secretary has shown that plaintiffs capability to perform the full range of light work was not significantly diminished [by his nonexertional impair ments]. That initial determination can be made without resort to a vocational expert.”). The government’s interpretation of 20 C.F.R. Part 404, Subpart P, Appendix 2, § 200.00(e)(2) (1999) in effect adopts this limitation on the rule barring exclusive rebanee on the grids when the claimant has exertional and nonexertional impairments. In Washington v. Heckler, 756 F.2d 959 (3d Cir.1985), we left open the possibility that the Commissioner could use the grids as a “framework” for determining the extent to which a nonexertional limitation may further diminish work capacity. See id. at 967-68. But the framework approach does not comport with Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983), when it is defined as broadly as it is here. The regulation provides that, where an individual has an impairment or a combination of impairments resulting in both exertional and nonexertional limitations, if a finding of disability is not possible based on exertional limitations alone, the grids “provide a framework for consideration of how much the individual’s work capability is further diminished in terms of any types of jobs that would be contraindicated by the nonexertional limitations.” 20 C.F.R. pt. 404, subpt. P, app. 2, § 200.00(e)(2) (1999). By comparison, the regulations governing a determination of disability when the claimant has solely exertional impairments direct a finding of disability without reference to additional evidence when the factors of the claimant’s particular impairments coincide with the criteria of a rule: The existence of jobs in the national economy is reflected in the “Decisions” shown in the rules; i.e., in promulgating the rules, administrative notice has been taken of the numbers of unskilled jobs that exist throughout the national economy at the various functional levels (sedentary, light, medium, heavy, and very heavy) as supported by the “Dictionary of Occupational Titles” and the “Occupational" }, { "docid": "18321945", "title": "", "text": "found the plaintiff unable to perform her past relevant work. Once it is determined that the plaintiff cannot return to her prior work, “the burden shifts to the [Commissioner] to show other work the claimant can do.” Foote, at 1559. Furthermore, when, as is the case here, a claimant is not able to perform the full range of work at a particular exertional level, the Commissioner may not exclusively rely on the Medical-Vocational Guidelines (the grids). Foote, at 1558-59. The presence of a non-exertional impairment, pain, also prevents exclusive reliance on the grids. Foote, at 1559. In such cases “the [Commissioner] must seek expert vocational testimony.” Foote, at 1559. THE STANDARD WHEN THE CLAIMANT TESTIFIES SHE SUFFERS FROM DISABLING PAIN In this circuit, “a three part ‘pain standard’ [is applied] when a claimant seeks to establish disability through his or her own testimony of pain or other subjective symptoms.” Foote, at 1560. The pain standard requires (1) evidence of an underlying medical condition and either (2) objective medical evidence that confirms the severity of the alleged pain arising from that condition or (3) that the objectively determined medical condition is of such a severity that it can be reasonably expected to give rise to the alleged pain. Foote, at 1560 (quoting Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir.1991)). In this circuit medical evidence of pain itself, or of its intensity, is not required. While both the regulations and the Hand standard require objective medical evidence of a condition that could reasonably be expected to cause the pain alleged, neither requires objective proof of the pain itself. Thus under both the regulations and the first (objectively identifiable condition) and third (reasonably expected to cause pain alleged) parts of the Hand standard a claimant who can show that his condition could reasonably be expected to give rise to the pain he alleges has established a claim of disability aoid is not required to produce additional, objective proof of the pain itself. See 20 CFR §§ 404.1529 and 416.929; Hale at 1011. Elam v. Railroad Retirement Bd., 921 F.2d 1210, 1215" }, { "docid": "22731965", "title": "", "text": "112 (2d Cir.1981) (“When the claimant has established that his impairment prevents him from returning to his previous employment, ‘the burden shifts to the [Commissioner], who must produce evidence to show the existence of alternative substantial gainful work which exists in the national economy and which the claimant could perform, considering not only his physical capability, but as well his age, his education, his experience and his training.’ ”) (quoting Parker v. Harris, 626 F.2d 225, 231 (2d Cir.1980)). “In the ordinary case,” the Commissioner meets his burden at the fifth step “by resorting to the applicable medical vocational guidelines (the grids), 20 C.F.R. Pt. 404, Subpt. P, App. 2 (1986).” Bapp, 802 F.2d at 604. The grids “take[ ] into account the claimant’s residual functional capacity in conjunction with the claimant’s age, education and work experience.” Zorilla v. Chater, 915 F.Supp. 662, 667 (S.D.N.Y.1996). Based on these considerations, the grids indicate whether the claimant can engage in any substantial gainful work existing in the national economy. Although the grid results are generally dispositive, exclusive reliance on the grids is inappropriate where the guidelines fail to describe the full extent of a claimant’s physical limitations. In particular, “sole reliance on the [g]rid[s] may be precluded where the claimant’s exertional impairments are compounded by significant nonexertional impairments that limit the range of sedentary work that the claimant can perform.” Id. In these circumstances, the Commissioner must “introduce the, testimony of a vocational expert (or other similar evidence) that jobs exist in the economy which claimant can obtain and perform.” Bapp, 802 F.2d at 603. In this case, the ALJ undertook the prescribed five step analysis and found that Rosa had satisfied the first four steps. The ALJ determined, more specifically, that (1) Rosa had “not engaged in substantial gainful activity since her alleged onset of disability,” (2) she had “severe musculoskeletal impairments,” (3) these impairments did not meet “the level of severity of any impairment contained in Appendix I,” and (4) the impairments nevertheless “prevent[ed] her from performing her past relevant work.” Thus, as the ALJ recognized, it was the Commissioner’s" }, { "docid": "22379549", "title": "", "text": "831 F.2d 1007, 1011 (11th Cir.1987). Often, the Commissioner meets this burden by relying on the grids. See Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir.1995). When the claimant cannot perform a full range of work at a given level of exertion or the claimant has non-exertional impairments that significantly limit basic work skills, exclusive reliance on the grids is inappropriate. See id. In such eases, the Commissioner’s preferred method of demonstrating that the claimant can perform other jobs is through the testimony of a VE. See id. In order for a VE’s testimony to constitute substantial evidence, the ALJ must pose a hypothetical question which comprises all of the claimant’s impairments. See generally McSwain v. Bowen, 814 F.2d 617, 619-20 (11th Cir.1987). The ALJ determined that Jones was not capable of performing a full range of sedentary work, so he appropriately called a VE to testify whether Jones, given her limitations, was capable of performing other jobs in the national economy. The VE identified the above-mentioned jobs that Jones could perform with her limitations. Notwithstanding, Jones argues that the ALJ’s reliance on the VE’s testimony was improper because the exertional and environmental requirements of some of the jobs identified by the VE, such as hand packager and nut sorter, conflict with the DOT. Specifically, Jones notes that there are no unskilled sedentary packaging jobs in the DOT and the DOT lists only eight agricultural sorter jobs which are unskilled, sedentary occupations. Several other circuits have analyzed the conflict between the VE’s testimony and the DOT. The Sixth Circuit in Conn v. Secretary of Health and Human Services, 51 F.3d 607, 610 (6th Cir.1995), held that the social security regulations do not require the Commissioner or the VE to rely on classifications in the DOT. Therefore, an ALJ may rely on the VE’s testimony even if it is inconsistent with the DOT. The Eighth and Ninth Circuits hold that the DOT controls unless it can be “rebutted ... with VE testimony which shows that ‘particular jobs, whether classified as light or sedentary, may be ones that a claimant can" }, { "docid": "4938341", "title": "", "text": "an ALJ is not sufficient evidence of the claimant's work capacity; an explanation of the claimant’s functional capacity from a doctor is required. Rivera-Torres v. Secretary of Health & Human Servs., 837 F.2d 4, 6-7 (1st Cir.1988). As explicitly stated in the regulations, residual functional capacity (“RFC”) is a medical assessment, and therefore, the ALJ is precluded from making his assessment without some expert medical testimony or other medical evidence to support his decision. See 20 C.F.R. § 404.1513(c), (d)(3). In meeting her burden of proof on the fifth step of the sequential evaluation process described above, the Commissioner, under appropriate circumstances, may rely on the medical-vocational guidelines contained in 20 C.F.R. Part 404, Subpart P, App. 2, commonly referred to as “the Grid”. The Grid takes into account the claimant’s residual functional capacity in conjunction with the claimant’s age, education and work experience. Based on these factors, the Grid indicates whether the claimant can engage in any other substantial gainful work which exists in the national economy. Generally the result listed in the Grid is dispositive on the issue of disability. Crean, 1992 WL 183421, at *4. Exclusive reliance on the Grid, however, is inappropriate where the medical-vocational guidelines fail to accurately describe a claimant’s particular limitations. See 20 C.F.R. Part 404, Subpart P, App. 2, § 200.00(e); Crean, 1992 WL 183421, at *4. Where there are discrepancies between the claimant’s profile and the Grid factors, all relevant facts are to be considered in light of the vocational considerations outlined in 20 C.F.R. §§ 404.1560-404.1569a; see Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir.1986). For example, sole reliance on the Grid may be pre-eluded where the claimant’s exertional impairments are compounded by significant nonexertional impairments that limit the range of sedentary work that the claimant can perform. See 20 C.F.R. Part 404, Subpart P, App. 2, §§ 200.00(e)(2), 201.00(h); see also Bapp, 802 F.2d at 605; Crean, 1992 WL 183421, at *4-*5. This is also the case where there is not substantial evidence that a claimant can perform a full exertional range of work. See Nelson v. Bowen," }, { "docid": "8299360", "title": "", "text": "The ALJ found the plaintiff unable to perform her past relevant work. Once it is determined that the plaintiff cannot return to her prior work, “the burden shifts to the [Commissioner] to show other work the claimant can do.” Foote, at 1559. Furthermore, when, as is the case here, a claimant is not able to perform the full range of work at a particular exertional level, the Commissioner may not exclusively rely on the Medical-Vocational Guidelines (the grids). Foote, at 1558-59. The presence of a non-exertional impairment, pain, also prevents exclusive reliance on the grids. Foote, at 1559. In such cases “the [Commissioner] must seek expert vocational testimony.” Foote, at 1559. THE STANDARD WHEN THE CLAIMANT TESTIFIES SHE SUFFERS FROM DISABLING PAIN In this circuit, “a three part ‘pain standard’ [is applied] when a claimant seeks to establish disability through his or her own testimony of pain or other subjective symptoms.” Foote, at 1560. The pain standard requires (1) evidence of an underlying medical condition and either (2) objective medical evidence that confirms the severity of the alleged pain arising from that condition or (3) that the objectively determined medical condition is of such a severity that it can be reasonably expected to give rise to the alleged pain. Foote, at 1560 (quoting Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir.1991)). In this circuit medical evidence of pain itself, or of its intensity, is not required. While both the regulations and the Hand standard require objective medical evidence of a condition that could reasonably be expected to cause the pain alleged, neither requires objective proof of the pain itself. Thus under both the regulations and the first (objectively identifiable condition) and third (reasonably expected to cause pain alleged) parts of the Hand standard a claimant who can show that his condition could reasonably be expected to give rise to the pain he alleges has established a claim of disability and is not required to produce additional, objective proof of the pain itself See 20 CFR §§ 404.1529 and 416.929; Hale at 1011. Elam v. Railroad Retirement Bd., 921 F.2d" }, { "docid": "22686676", "title": "", "text": "grids categorize jobs by their physical-exertional requirements and consist of three separate tables-one for each category: “[m]aximum sustained work capacity limited to sedentary work,” “[mjaximum sustained work capacity limited to light work,” and “[m]aximum sustained work capacity limited to medium work.” 20 C.F.R. pt. 404, subpt. P, app. 2, rule 200.00. Each grid presents various combinations of factors relevant to a claimant’s ability to find work. The factors in the grids are the claimant’s age, education, and work experience. For each combination of these factors, e.g., fifty years old, limited education, and unskilled work experience, the grids direct a finding of either “disabled” or “not disabled” based on the number of jobs in the national economy in that category of physical-exertional requirements. See id. This approach allows the Commissioner to streamline the administrative process and encourages uniform treatment of claims. See Heckler v. Campbell, 461 U.S. 458, 460-462, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983) (discussing the creation and purpose of the Medical-Vocational Guidelines). The Commissioner’s need for efficiency justifies use of the grids at step five where they completely and accurately represent a claimant’s limitations. See id. at 461. In other words, a claimant must be able to perform the full range of jobs in a given category, i.e., sedentary work, light work, or medium work. As explained in Desrosiers: This court has recognized that significant non-exertional impairments, such as poor vision or inability to tolerate dust or gases, may make reliance on the grids inappropriate. We have also held that pain can be a non-exertional limitation. However, the fact that a non-exertional limitation is alleged does not automatically preclude application of the grids. The ALJ should first determine if a claimant’s non-exertional limitations significantly limit the range of work permitted by his exertional limitations. ... A non-exertional impairment, if sufficiently severe, may limit the claimant’s functional capacity in ways not contemplated by the guidelines. In such a ease, the guidelines would be inapplicable. 846 F.2d at 577 (Pregerson, J., concurring) (internal citations omitted). The ALJ may rely on the grids alone to show the availability of jobs for" }, { "docid": "18321944", "title": "", "text": "impairment meets or equals one listed by the Secretary; (4) whether the claimant can perform her past work; and (5) whether the claimant is capable of performing any work in the national economy. Pope v. Shalala, 998 F.2d 473, 477 (7th Cir.1993); accord McDaniel v. Bowen, 800 F.2d 1026,1030 (11th Cir.1986). “Once the claimant has satisfied Steps One and Two, she will automatically be found disabled if she suffers from a listed impairment. If the claimant does not have a listed impairment but cannot perform her past work, the burden shifts to the Secretary to show that the claimant can perform some other job.” Pope at 477; accord Foote v. Chater, 67 F.3d 1653, 1559 (11th Cir.1995). The Commissioner further bears the burden of showing that such work exists in the national economy in significant numbers. Id. In the instant case, ALJ Jerry C. Shirley determined the plaintiff met the first two tests, but concluded that while she has an impairment or impairments considered “severe,” she did not suffer from a listed impairment. The ALJ found the plaintiff unable to perform her past relevant work. Once it is determined that the plaintiff cannot return to her prior work, “the burden shifts to the [Commissioner] to show other work the claimant can do.” Foote, at 1559. Furthermore, when, as is the case here, a claimant is not able to perform the full range of work at a particular exertional level, the Commissioner may not exclusively rely on the Medical-Vocational Guidelines (the grids). Foote, at 1558-59. The presence of a non-exertional impairment, pain, also prevents exclusive reliance on the grids. Foote, at 1559. In such cases “the [Commissioner] must seek expert vocational testimony.” Foote, at 1559. THE STANDARD WHEN THE CLAIMANT TESTIFIES SHE SUFFERS FROM DISABLING PAIN In this circuit, “a three part ‘pain standard’ [is applied] when a claimant seeks to establish disability through his or her own testimony of pain or other subjective symptoms.” Foote, at 1560. The pain standard requires (1) evidence of an underlying medical condition and either (2) objective medical evidence that confirms the severity of the" }, { "docid": "8971418", "title": "", "text": "actions, as well as inconsistencies with the objective medical evidence, in finding the complaints to be not credible. We think that the referee articulated “explicit and adequate” reasons for discrediting Martin’s complaints. 2. Referee’s reliance upon Medical-Vocational Guidelines Martin next argues that the referee erred as a matter of law in relying upon the Medical-Vocational Guidelines , 20 C.F.R. pt. 404, subpt. P, app. II (the “grids”), to find that Martin was not entitled to an annuity. We disagree. Once a claimant has established that he cannot return to his past relevant work, the burden shifts to- the Board to prove that he is capable, considering his age, education, and work experience, of engaging in some other kind of- employment. Walker v. Bowen, 826 F.2d 996, 1002 (11th Cir.1987). In the case before us, the referee determined that Martin was no longer able to return to his past relevant work. Therefore, the burden was then on the Board to show that Martin was capable of other gainful employment. It is at this stage that the grids may become applicable. The Medical-Vocational guidelines include detailed rules and grids which, based on a claimant’s residual functional capacity, education, age, and previous work experience, direct the referee to make a finding of disabled or not disabled. Walker, 826 F.2d at 1002. Yet, it is the law of our circuit that “Exclusive reliance on the grids is not appropriate either when claimant is unable to perform a full range of work at a given functional level or when a claimant has non-exertional impairments that significantly limit basic work skills.” Id. (quoting Francis v. Heckler, 749 F.2d 1562, 1566 (11th Cir.1985)). Additionally, the grids are not to be used when “the claimants non-exertional impairments are severe enough to preclude a wide range of employment at the level indicated by the exertional impairments.” Id. (citing Smith v. Bowen, 792 F.2d 1547, 1554 (11th Cir.1986); 20 C.F.R. pt. 404, subpt. P, app. II § 200.00(e)) (emphasis deleted). Yet, the referee may rely on the grids despite certain non-exertional impairments, such as those found to be not credible." }, { "docid": "21595883", "title": "", "text": "826 F.2d 996, 999 (11th Cir.1987). The AU found that Welch “is unable to perform his past relevant work as [a courier].” As we recently explained, once the claimant has established that she cannot return to her past relevant work, the burden shifts to the Secretary to prove that the claimant is capable, considering her age, education, and work experience, of engaging in any other kind of gainful employment.... At this stage, the Medical Vocational Guidelines, 20 C.F.R. pt. 404, subpt. P, app. II (the grids), may come into play. These guidelines include detailed grids and rules which, based on a claimant’s residual functional capacity, age, education, and previous work experience, direct a finding of disabled or not disabled. Walker, 826 F.2d at 1002. In this case, the AU received no testimony from a vocation al expert (VE) regarding the availability of suitable jobs for Welch to perform. Instead, the ALJ relied exclusively upon the “grids” to make his determination. We have consistently held that “the Secretary may rely on the grids only in ‘appropriate cases.’ ” Gibson v. Heckler, 762 F.2d 1516, 1520 (11th Cir.1985). As we recently explained, “Exclusive reliance on the grids is not appropriate either when claimant is unable to perform a full range of work at a given functional level or when a claimant has non-exertional impairments that significantly limit basic work skills.” ... The grids may be used only when each variable on the appropriate grid accurately describes the claimant’s situation.... The grids also may not be used when the claimant’s non-exertional impairments are severe enough to preclude a wide range of employment at the level indicated by the exertional impairments. ... Walker, 826 F.2d at 1002-03 (emphasis in original) (quoted and cited sources omitted). The AU found that Welch has “nonexer-tional limitations”, so that Welch cannot do “work requiring climbing, balancing, working at heights or around dangerous machinery....” The AU also stated that “the claimant has a severe impairment, i.e., an impairment which significantly limits his ability to perform basic work activities.” Although the AU concluded that Welch could do some “medium work”," }, { "docid": "22406792", "title": "", "text": "other case involving a non-exertional impairment; rather, we only require that there be reliable evidence of some kind that would persuade a reasonable person that the limitations in question do not significantly diminish the employment opportunities otherwise available.” (citation omitted)); Channel v. Heckler, 747 F.2d 577, 582 n. 6 (10th Cir.1984) (per curiam) (holding that “the mere presence of a non-exertional impairment does not automatically preclude reliance on the grids”; rather, reliance on the grids is foreclosed only when the nonexertional impairment poses an additional limitation on the claimant’s ability to perform a range of available jobs.). This described limitation on the rule against exclusive reliance on the grids when the claimant has exertional and non-exertional impairments significantly narrows the rule. It leaves the ALJ free to assess whether there is credible evidence that the nonexertional impairment limits residual functional capacity before going off the grids, in effect allowing the ALJ to refer to the grids (and consider the medical evidence) to determine whether the nonexertional impairment is severe enough to make the grids inapplicable before considering any evidence in addition to the grids. See, e.g., Bapp, 802 F.2d at 606 (“Upon remand the ALJ must reevaluate whether the Secretary has shown that plaintiffs capability to perform the full range of light work was not significantly diminished [by his nonexertional impair ments]. That initial determination can be made without resort to a vocational expert.”). The government’s interpretation of 20 C.F.R. Part 404, Subpart P, Appendix 2, § 200.00(e)(2) (1999) in effect adopts this limitation on the rule barring exclusive rebanee on the grids when the claimant has exertional and nonexertional impairments. In Washington v. Heckler, 756 F.2d 959 (3d Cir.1985), we left open the possibility that the Commissioner could use the grids as a “framework” for determining the extent to which a nonexertional limitation may further diminish work capacity. See id. at 967-68. But the framework approach does not comport with Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983), when it is defined as broadly as it is here. The regulation provides that, where an" }, { "docid": "8299359", "title": "", "text": "her impairment meets or equals one listed by the Secretary; (4) whether the claimant can perform her past work; and (5) whether the claimant is capable of performing any work in the national economy. Pope v. Shalala, 998 F.2d 473, 477 (7th Cir.1993); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir.1986). “Once the claimant has satisfied Steps One and Two, she will automatically be found disabled if she suffers from a listed impairment. If the claimant does not have a listed impairment but cannot perform her past work, the burden shifts to the Secretary to show that the claimant can perform some other job.” Pope at 477; accord Foote v. Chafer, 67 F.3d 1553, 1559 (11th Cir.1995). The Commissioner further bears the burden of showing that such work exists in the national economy in significant numbers. Id. In the instant case, ALJ Russell W. Lewis determined the plaintiff met the first two tests, but concluded that while she has an impairment or impairments considered “severe,” she did not suffer from a listed impairment. The ALJ found the plaintiff unable to perform her past relevant work. Once it is determined that the plaintiff cannot return to her prior work, “the burden shifts to the [Commissioner] to show other work the claimant can do.” Foote, at 1559. Furthermore, when, as is the case here, a claimant is not able to perform the full range of work at a particular exertional level, the Commissioner may not exclusively rely on the Medical-Vocational Guidelines (the grids). Foote, at 1558-59. The presence of a non-exertional impairment, pain, also prevents exclusive reliance on the grids. Foote, at 1559. In such cases “the [Commissioner] must seek expert vocational testimony.” Foote, at 1559. THE STANDARD WHEN THE CLAIMANT TESTIFIES SHE SUFFERS FROM DISABLING PAIN In this circuit, “a three part ‘pain standard’ [is applied] when a claimant seeks to establish disability through his or her own testimony of pain or other subjective symptoms.” Foote, at 1560. The pain standard requires (1) evidence of an underlying medical condition and either (2) objective medical evidence that confirms the severity" }, { "docid": "22382076", "title": "", "text": "v. Heckler, 762 F.2d 1516 (11th Cir.1985). The Secretary bears the burden of establishing that Appellant, who could not perform her past work, could perform alternative work in the national economy. Although this burden can sometimes be met through straightforward application of the Medical-Vocational Guidelines (the “grids”), the regulations regarding the implementation of the grids caution that they are only applicable under certain conditions. For example, the claimant must suffer primarily from an exertional impairment, without significant nonexertional factors. 20 C.F.R. Part 404, Sub-part P, Appendix 2, § 200.00(e). Exclusive reliance on the grids is appropriate in cases involving only exertional impairments (impairments which place limits on an individual’s ability to meet job strength requirements). Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983). Pain is a nonexertional impairment. Walker, 826 F.2d at 1003. Exclusive reliance on the grids is inappropriate when a claimant has a nonexertional impairment that significantly limits the claimant’s basic work activities. Swindle v. Sullivan, 914 F.2d 222, 226 (11th Cir.1990) (ALJ improperly discounted claimant’s testimony about pain and dizziness; on remand, if such pain is found to significantly limit claimant’s activities, the court should use a vocational expert). If the grids are inapplicable, the Secretary must seek expert vocational testimony. Normally, when nonexertional limitations are alleged, “the preferred method of demonstrating that the claimant can perform specific work is through the testimony of a vocational expert.” MacGregor v. Bowen, 786 F.2d 1050, 1054 (11th Cir.1986) (affirming district court reversal of ALJ who applied grids). “ ‘It is only when the claimant can clearly do unlimited types of light work, ... that it is unnecessary to call a vocational expert to establish whether the claimant can perform work which exists in the national economy.’” Allen v. Sullivan, 880 F.2d 1200, 1202 (11th Cir.1989) (quoting Ferguson v. Schweiker, 641 F.2d 243, 248 (5th Cir. Unit A, March 1981)). “The burden of showing by substantial evidence that a person who can no longer perform his former job can engage in other substantial gainful activity is in almost all cases satisfied only through the use" }, { "docid": "22406789", "title": "", "text": "relevant facts in the case in accordance with the definitions and discussions of each factor in the appropriate sections of the regulations, which will provide insight into the adjudicative weight to be accorded each factor. 20 C.F.R. pt. 404, subpt. P, app. 2, § 200.00(e)(2) (1999). The government argues that, under this regulation, the ALJ need not refer to any additional evidence in determining whether a nonexertional impairment erodes residual functional capacity. The courts of appeals agree at a general level that the grids cannot automatically establish that there are jobs in the national economy when a claimant has severe exertional and nonexertional impairments. In Burnam v. Schweiker, 682 F.2d 456 (3d Cir.1982), we rejected reliance on the grids in this situation because the medical-vocational grids do not “purport to establish the existence of jobs for persons ... with both exertional and nonexertional impairments.” Id. at 458; see also Washington v. Heckler, 756 F.2d 959, 967-68 (3d Cir.1985) (“[G]iven the Secretary’s failure to present any evidence of [the claimant’s] ability to work independent of the prescriptions of the grids, a finding that appellant was not disabled is simply contrary to this Court’s precedent.”); Wallace v. Secretary of Health & Human Servs., 722 F.2d 1150, 1155 (3d Cir.1983) (per curiam) (“Such an inappropriate reliance on the grid regulations to determine the disability of an individual with both exertional and non-exertional impairments would be contrary to Burnam”). There is, however, considerable variety among the courts of appeals regarding the scope of the limitation on the use of the grids when a claimant has exertional and nonexertional impairments. Some cases from the other circuits have held that the bar on exclusive reliance on the grids in this situation is limited by the requirement that the nonexertional impairment invoked must be significant enough to limit further the range of work permitted by the exertional limitations (the residual functional capacity) before it precludes application of the grids. See, e.g., Heggarty v. Sullivan, 947 F.2d 990, 996 (1st Cir.1991) (per curiam) (noting law of circuit that the Commissioner may rely on the grids if the claimant’s" }, { "docid": "10950112", "title": "", "text": "v. Secretary of Health and Human Servs., 705 F.2d 638, 642 (2d Cir.1983). Moreover, the opinion of a treating physician is entitled to considerable weight and is, in the absence of contradictory evidence, binding on the Commissioner. Id. In meeting her burden of proof on the fifth step of the sequential evaluation process described above, the Commissioner, under appropriate circumstances, may rely on the medical-vocational guidelines contained in 20 C.F.R. Part 404, Subpart P, App. 2, common ly referred to as “the Grid”. The Grid takes into account the claimant’s RFC in conjunction with the claimant’s age, education and work experience. Based on these factors, the Grid indicates whether the claimant can engage in any other substantial gainful work which exists in the national economy. Generally the result listed in the Grid is disposi-tive on the issue of disability. Crean, 1992 WL 183421, at *4. Exclusive reliance on the Grid, however, is inappropriate where the medical-vocational guidelines fail to accurately describe a claimant’s particular limitations. See 20 C.F.R. Part 404, Subpart P, App. 2, § 200.00(e); Crean, 1992 WL 183421, at *4. Where there are discrepancies between the claimant’s profile and the Grid factors, all relevant facts are to be considered in light of the vocational considerations outlined in 20 C.F.R. §§ 404.1560-404.1569a; see Bapp v. Bowen, 802 F.2d 601, 606 (2d Cir.1986). For example, sole reliance on the Grid may be precluded where the claimant’s exertional impairments are compounded by significant nonexertional impairments that limit the range of sedentary work that the claimant can perform. See 20 C.F.R. Part 404, Subpart P, App. 2, §§ 200.00(e)(2), 201.00(h); see also Bapp, 802 F.2d at 605; Crean, 1992 WL 183421, at *4-*5. This is also the case where there is not substantial evidence that a claimant can perform a full exertional range of work. See Nelson v. Bowen, 882 F.2d 45, 49 (2d Cir.1989) (individual assessment required where there is insufficient proof that a claimant can perform a full range sedentary work). B. In the present case, the ALJ performed the five-step evaluation process in determining that Gray is not entitled" }, { "docid": "22379548", "title": "", "text": "the economy because that testimony conflicted with the DOT. According to the limitations identified by the ALJ and the job descriptions in the DOT, Jones contends that the Commissioner has failed to prove by a preponderance of the evidence that there are other jobs in substantial numbers in the economy which she can perform. The Commissioner responds that the ALJ appropriately relied on the VE’s testimony to satisfy its burden of showing that Jones could perform work that exists in the national and regional economy. To the extent that the VE’s testimony may have conflicted with the DOT, the Commissioner urges this court to follow the approach taken by the Sixth Circuit, or alternatively, the Eighth and Ninth Circuits, and hold that the VE’s testimony trumps the DOT. In a disability determination, once a claimant proves that she can no longer perform her past relevant work, the burden shifts to the Commissioner “to show the existence of other jobs in the national economy which, given the claimant’s impairments, the claimant can perform.” Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir.1987). Often, the Commissioner meets this burden by relying on the grids. See Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir.1995). When the claimant cannot perform a full range of work at a given level of exertion or the claimant has non-exertional impairments that significantly limit basic work skills, exclusive reliance on the grids is inappropriate. See id. In such eases, the Commissioner’s preferred method of demonstrating that the claimant can perform other jobs is through the testimony of a VE. See id. In order for a VE’s testimony to constitute substantial evidence, the ALJ must pose a hypothetical question which comprises all of the claimant’s impairments. See generally McSwain v. Bowen, 814 F.2d 617, 619-20 (11th Cir.1987). The ALJ determined that Jones was not capable of performing a full range of sedentary work, so he appropriately called a VE to testify whether Jones, given her limitations, was capable of performing other jobs in the national economy. The VE identified the above-mentioned jobs that Jones could perform with her" }, { "docid": "22382075", "title": "", "text": "880 F.2d 1200, 1201 (11th Cir.1989); Welch v. Bowen, 854 F.2d 436, 440 (11th Cir.1988). This burden may sometimes be met through exclusive reliance on the grids. However, “ ‘exclusive reliance on the grids is not appropriate either when the claimant is unable to perform a full range of work at a given residual functional level or when a claimant has a non-exertional impairment that significantly limits basic work skills.’” Walker v. Bowen, 826 F.2d 996, 1002-03 (11th Cir.1987) (quoting Francis v. Heckler, 749 F.2d 1562, 1566 (11th Cir.1985). Review of the Secretary’s application of legal principles is plenary. Swindle v. Sullivan, 914 F.2d 222, 225 (11th Cir.1990). When the proper legal standards have not been applied, the proper course is not remand, but reversal. Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir.1988). I. Did the ALJ prove “other work” that Foote could do Once the finding is made that a claimant cannot return to prior work the burden of proof shifts to the Secretary to show other work the claimant can do. Gibson v. Heckler, 762 F.2d 1516 (11th Cir.1985). The Secretary bears the burden of establishing that Appellant, who could not perform her past work, could perform alternative work in the national economy. Although this burden can sometimes be met through straightforward application of the Medical-Vocational Guidelines (the “grids”), the regulations regarding the implementation of the grids caution that they are only applicable under certain conditions. For example, the claimant must suffer primarily from an exertional impairment, without significant nonexertional factors. 20 C.F.R. Part 404, Sub-part P, Appendix 2, § 200.00(e). Exclusive reliance on the grids is appropriate in cases involving only exertional impairments (impairments which place limits on an individual’s ability to meet job strength requirements). Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983). Pain is a nonexertional impairment. Walker, 826 F.2d at 1003. Exclusive reliance on the grids is inappropriate when a claimant has a nonexertional impairment that significantly limits the claimant’s basic work activities. Swindle v. Sullivan, 914 F.2d 222, 226 (11th Cir.1990) (ALJ improperly discounted claimant’s testimony about" }, { "docid": "22382074", "title": "", "text": "The ALJ did not properly consider Foote’s subjective complaints of pain, nor did the ALJ make specific findings of credibility. The ALJ also neglected to prove other work that Foote could perform. The Secretary, in response, contends that Appellant had the residual functional capacity to perform a full range of sedentary work — and.therefore the ALJ did not err in applying the grids. Nor did Appellant establish the existence of a nonexertional impairment that would have precluded application of the grids. The Secretary also contends that the ALJ properly considered the evidence, and that specific findings of credibility were not required. DISCUSSION We find the most merit in Appellant’s second argument, as to the necessity of testimony from a vocational expert, and therefore immediately proceed to that discussion. Her first argument, regarding the ALJ’s failure to make specific credibility findings and to fully consider the medical evidence, will then be briefly addressed. The ALJ has the obligation of developing a full and fair record regarding the vocational opportunities available to a claimant. Allen v. Sullivan, 880 F.2d 1200, 1201 (11th Cir.1989); Welch v. Bowen, 854 F.2d 436, 440 (11th Cir.1988). This burden may sometimes be met through exclusive reliance on the grids. However, “ ‘exclusive reliance on the grids is not appropriate either when the claimant is unable to perform a full range of work at a given residual functional level or when a claimant has a non-exertional impairment that significantly limits basic work skills.’” Walker v. Bowen, 826 F.2d 996, 1002-03 (11th Cir.1987) (quoting Francis v. Heckler, 749 F.2d 1562, 1566 (11th Cir.1985). Review of the Secretary’s application of legal principles is plenary. Swindle v. Sullivan, 914 F.2d 222, 225 (11th Cir.1990). When the proper legal standards have not been applied, the proper course is not remand, but reversal. Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir.1988). I. Did the ALJ prove “other work” that Foote could do Once the finding is made that a claimant cannot return to prior work the burden of proof shifts to the Secretary to show other work the claimant can do. Gibson" }, { "docid": "22406788", "title": "", "text": "ALJ can make the determination regarding disability and need not take additional vocational evidence if he determines that the nonexertional impairment does not significantly erode the occupational base of the category of work that the claimant can perform given his exertional impairments. A. The Grids and Nonexertional Impairments The Social Security Administration has promulgated regulations governing the determination of disability when the claimant has an impairment or combination of impairments resulting in both exertional limitations and nonexertional limitations. The regulation governing the assessment of nonexertional limitations provides that, if a finding of disability is not possible based on exertional limitations alone, the rule(s) reflecting the individual’s maximum residual strength capabilities, age, education, and work experience provide a framework for consideration of how much the individual’s work capability is further diminished in terms of any types of jobs that would be contraindicated by the nonexertional limitations. Also, in these combinations of nonexer-tional and exertional limitations which cannot be wholly determined under the rules in this appendix 2, full consideration must be given to all of the relevant facts in the case in accordance with the definitions and discussions of each factor in the appropriate sections of the regulations, which will provide insight into the adjudicative weight to be accorded each factor. 20 C.F.R. pt. 404, subpt. P, app. 2, § 200.00(e)(2) (1999). The government argues that, under this regulation, the ALJ need not refer to any additional evidence in determining whether a nonexertional impairment erodes residual functional capacity. The courts of appeals agree at a general level that the grids cannot automatically establish that there are jobs in the national economy when a claimant has severe exertional and nonexertional impairments. In Burnam v. Schweiker, 682 F.2d 456 (3d Cir.1982), we rejected reliance on the grids in this situation because the medical-vocational grids do not “purport to establish the existence of jobs for persons ... with both exertional and nonexertional impairments.” Id. at 458; see also Washington v. Heckler, 756 F.2d 959, 967-68 (3d Cir.1985) (“[G]iven the Secretary’s failure to present any evidence of [the claimant’s] ability to work independent of the" }, { "docid": "8971419", "title": "", "text": "grids may become applicable. The Medical-Vocational guidelines include detailed rules and grids which, based on a claimant’s residual functional capacity, education, age, and previous work experience, direct the referee to make a finding of disabled or not disabled. Walker, 826 F.2d at 1002. Yet, it is the law of our circuit that “Exclusive reliance on the grids is not appropriate either when claimant is unable to perform a full range of work at a given functional level or when a claimant has non-exertional impairments that significantly limit basic work skills.” Id. (quoting Francis v. Heckler, 749 F.2d 1562, 1566 (11th Cir.1985)). Additionally, the grids are not to be used when “the claimants non-exertional impairments are severe enough to preclude a wide range of employment at the level indicated by the exertional impairments.” Id. (citing Smith v. Bowen, 792 F.2d 1547, 1554 (11th Cir.1986); 20 C.F.R. pt. 404, subpt. P, app. II § 200.00(e)) (emphasis deleted). Yet, the referee may rely on the grids despite certain non-exertional impairments, such as those found to be not credible. See Francis, 749 F.2d at 1566-67. The referee in this case determined that Martin suffered from minor exertional impairments of the neck and lower back, based upon the record evidence. Yet, he determined that the objective evidence showed that Martin still possessed the ex-ertional capacity to perform light work. The referee also found that Martin suffered from minor non-exertional impair- merits due to depression and somatoform disorder. However, he determined that Martin’s non-exertional impairments, as well as his subjective complaints of pain, “do not significantly limit his exertional capacity for light work.” (R.29). The referee’s determination that Martin’s non-exertional impairments do not significantly limit his exertional ability to perform light work is supported by substantial evidence. Accordingly, the referee did not err in relying on the grids. We therefore AFFIRM the Board’s opinion affirming the decision of the appeals referee. . 20 C.F.R. § 200.2 (1990) sets out the procedure for filing and appealing claims to the Railroad Retirement Board. According to the regulations, one seeking a benefit must file an application, which is then" } ]

[ { "docid": "18607293", "title": "", "text": "willful and malicious injury by the debtor. He therefore argues that there is no identity between the issues to be determined in the two proceedings. See Matter of Ross, 602 F.2d at 608 (requiring identity of issues as a prerequisite to issue preclusion). We do not, however, find the jury’s use of the “preponderance of the evidence” standard in arriving at its verdict to be fatal to preclusion, so long as the principles of collateral estoppel are cautiously and carefully applied. The Bankruptcy Code is silent as to the standard of proof necessary to establish the exceptions to discharge in § 523. In the face of this silence, courts may not imply a higher standard than the preponderance standard normally applied in civil proceedings. Although the “fresh start” philosophy of bankruptcy law requires that exceptions to discharge “be confined to those plainly expressed,” Gleason v. Thaw, 236 U.S. 558, 562, 35 S.Ct. 287, 289, 59 L.Ed. 717 (1915), this policy does not justify judicial imposition of a heavier burden of proof on creditors seeking to have a debt determined nondischargeable under § 523(a)(6). Congress had reasons for enacting the exceptions to discharge in bankruptcy embodied in § 523. While bankruptcy proceedings are intended to afford debtors a “fresh start,” the provision at issue here expresses Congress’ determination that debts incurred as the result of a debtor’s willful and malicious injury of another are of a type that bankruptcy ought not to forgive. The balance of these competing policies does not require a heightened, standard of proof of the § 523 exception, but does not require that the bankruptcy court carefully determine that the prerequisites for collateral estoppel have been fully satisfied. Although lower courts are divided on the question of the appropriate standard of proof, compare In re Shepherd, 56 B.R. 218, 221 (W.D.Va.1985); In re Boren, 47 B.R. 293, 295 n. 8 (Bankr.W.D.Ky.1985); In re Baiata, 12 B.R. 813, 817 (Bankr.E.D.N. Y.1981) (applying preponderance of evidence standard) with In re Peoni, 67 B.R. 288, 290 (Bankr.S.D.Ind.1986); Matter of Wintrow, 57 B.R. 695, 703 (Bankr.S.D.Ohio 1986); In re Capparelli, 33" } ]

[ { "docid": "19012023", "title": "", "text": "in its Order of August 7,1986, when it stated: “Here, there clearly was sufficient evidence to support the jury’s conclusion that defendant violated his fiduciary duty and intentionally defrauded plaintiffs.” The Court of Appeals, Eighth Circuit, stated: “We find substantial evidence, as did the jury, to support proof of fraud committed by Garner against the plaintiffs.” Therefore, although this Court believes and holds that the Bankruptcy Court is the sole arbiter of Section 523 discharge-ability vel non, nevertheless where identical factual issues have been fully litigated and properly decided using identical standards by courts of appropriate jurisdiction, collateral estoppel bars relitigation of those issues in this Court. This leads to the final question to be determined by this Court, i.e., were identical standards used? In defendant’s brief, the point is made that the standard in the District Court trial was “preponderance of the evidence” while the standard should be “clear and convincing” and that the two are totally dissimilar. If defendant’s point is well taken, then obviously collateral estoppel does not come into play and there is insufficient evidence before the Court to determine dischargeability. The Honorable Dennis J. Stewart, Chief Bankruptcy Judge of this District, had occasion to explore this identical question in a footnote to his opinion in Matter of Curl, 49 B.R. 302 (Bkr.W.D.Mo.1985), see footnote 6. This Court, although not bound by that ruling, frankly considers it not only the best exposition of how the apparent divergence arose, but strongly recommends that any counsel engaged in Section 523 litigation regard that opinion (and the footnotes) as required reading for a thorough understanding of the elements of proof and the applicability of evidentiary standards. Accordingly, this Court concludes that there is no real distinction between “preponderance of the evidence” and “clear and convincing” as regards Section 523 litigation. Inexorably then, the Court concludes that through collateral estoppel, creditors sustained the burden of proof and through their exhibits sustained the burden as to all elements of dischargeability. The judgment rendered on common law fraud which was pled in Count I of plaintiff’s original complaint in Federal District Court" }, { "docid": "6945310", "title": "", "text": "n of proof to clear and convincing is an arbitrary remedy to an ill-defined, irrelevant situation, “a pure abstraction and an unwarranted judicial gloss on the statute.” Dubian, 77 B.R. at 339. There is no basis in the Code for such a standard and, absent a directive from Congress, the normal standard of preponderance should be used. Combs, 838 F.2d at 116. Moreover, I doubt that the higher standard would have much practical effect but to make state court judgments unenforceable in bankruptcy court because, as noted in the article by Professor Ferriell, most states require only a preponderance of the evidence to prove a tort. 58 Am.Bankr.L.J. at 362, n. 83 and at 363, n. 85. This in turn would undermine Spilman, for it would make the application of collateral estoppel a theoretical possibility but a practical impossibility. I am gratified to find support for my decision in the Fourth Circuit’s Combs opinion, which held at page 116 that “the policies of the Bankruptcy Code are best effectuated by requiring that creditors prove by a preponderance of the evidence the willfulness and maliciousness of the debtor’s acts under § 523(a)(6),” and in Judge Spector’s Watkins opinion. For the above reasons, I conclude that the proper standard of proof under § 523(a)(6) should be the preponderance of the evidence. I further conclude that I have been given a sufficient portion of the Oklahoma court record to assure myself that the issues of the debtor’s willful and malicious conduct were actually litigated and were necessary to the judgment against him. Therefore, there being no issues of material fact which are left in question, and the facts as determined by the Oklahoma jury justifying a decision of nondischargeability as a matter of law, I grant the plaintiff’s motion for summary judgment on the jury verdict. An order to this effect has been entered." }, { "docid": "22608684", "title": "", "text": "the fraud judgment as modified. Grogan v. Garner, 806 F. 2d 829 (1986). Petitioners then filed a complaint in the bankruptcy proceeding requesting a determination that their claim based on the fraud judgment should be exempted from discharge pursuant to § 523. App. 3-4. In support of their complaint, they introduced portions of the record in the fraud case. The Bankruptcy Court found that all of the elements required to establish actual fraud under §523 had been proved and that the doctrine of collateral estoppel required a holding that the debt was therefore not dischargeable. In re Garner, 73 B. R. 26 (WD Mo. 1987). Respondent does not challenge the conclusion that the elements of the fraud claim proved in the first trial are sufficient to establish “fraud” within the meaning of §523. Instead, he has consistently argued that collateral estoppel does not apply because the jury instructions in the first trial merely required that fraud be proved by a preponderance of the evidence, whereas § 523 requires proof by clear and convincing evidence. Both the Bankruptcy Court and the District Court rejected this argument. The Court of Appeals, however, reversed. In re Garner, 881 F. 2d 579 (1989). It recognized that the “Bankruptcy Code is silent as to the burden of proof necessary to establish an exception to discharge under section 523(a), including the exception for fraud,” id., at 581, but concluded that two factors supported the imposition of a “clear and convincing” standard, at least in fraud cases. First, the court stated that the higher standard had generally been applied in both common-law fraud litigation and in resolving dischargeability issues before § 523(a) was enacted, and reasoned that it was unlikely that Congress had intended silently to change settled law. Second, the court opined that the general “fresh start” policy that undergirds the Bankruptcy Code militated in favor of a broad construction favorable to the debtor. The Eighth Circuit holding is consistent with rulings in most other Circuits, but conflicts with recent decisions by the Third and Fourth Circuits. The conflict, together with the importance of the issue," }, { "docid": "6494529", "title": "", "text": "§ 523(a) include: Mammoth Cave Production Credit Ass’n v. Boren (In re Boren), 47 B.R. 293, 295 n. 8 (Bankr.W.D.Ky.1985) (§ 523(a)(6)); Ross v. Carney (In re Carney), 68 B.R. 655, 657 (Bankr.D.N.H.1986) (§ 523(a)(9)); Stern v. Dubian (In re Dubian), 11 B.R. 332, 339 (Bankr.D.Mass.1987) (§ 523(a)(6)). This Court considered the split of authority on the standard of proof in § 523(a)(9) cases (judgment debt incurred in operating a motor vehicle while legally intoxicated) and held that the preponderance standard should apply. Whitson v. Middleton (In re Middleton), 100 B.R. 814 (Bankr.E.D.Va.1988), affd No. 89-103N (E.D.Va. April 12, 1989), appeal docketed No. 89-2689 (4th Cir. May 2, 1989). Other cases under § 523(a)(9) include Ross v. Carney (In re Carney), 68 B.R. 655 (preponderance); State Farm Mut. Auto. Ins. Co. v. Wright (In re Wright), 66 B.R. 403 (Bankr.S.D.Ind.1986) (clear and convincing); Commercial Union Ins. Co. v. Christianson (In re Christianson), 65 B.R. 157 (Bankr.W.D.Mo.1986) (“substantial” evidence required); Beneficial Consumer Discount Co. of Lancaster, Pennsylvania v. Barrett (In re Barrett), 2 B.R. 296 (Bankr.E.D.Pa.1980) (clear and convincing). It should be noted that Bankruptcy Judge Yacos in Carney concluded that the clear and convincing standard was limited to “dischargeability questions involving a fraud element”. In re Carney, 68 B.R. at 657. The Court of Appeals for the Fourth Circuit in Combs v. Richardson, 838 F.2d 112 (4th Cir.1988), has suggested that the appropriate standard of proof to be applied in this Circuit in cases under § 523(a) is by preponderance of evidence. The specific holding in Combs was that under § 523(a)(6) a creditor must prove that a debtor’s acts were willful and malicious by a preponderance of evidence. Combs, 838 F.2d at 116. Yet, Combs employs broad language indicating the holding is not limited to § 523(a)(6) cases. The Fourth Circuit wrote: The Bankruptcy Code is silent as to the standard of proof necessary to establish the exceptions to discharge in § 523. In the face of this silence, courts may not imply a higher standard than the preponderance standard normally applied in civil proceedings. 838 F.2d at 116." }, { "docid": "22608685", "title": "", "text": "the Bankruptcy Court and the District Court rejected this argument. The Court of Appeals, however, reversed. In re Garner, 881 F. 2d 579 (1989). It recognized that the “Bankruptcy Code is silent as to the burden of proof necessary to establish an exception to discharge under section 523(a), including the exception for fraud,” id., at 581, but concluded that two factors supported the imposition of a “clear and convincing” standard, at least in fraud cases. First, the court stated that the higher standard had generally been applied in both common-law fraud litigation and in resolving dischargeability issues before § 523(a) was enacted, and reasoned that it was unlikely that Congress had intended silently to change settled law. Second, the court opined that the general “fresh start” policy that undergirds the Bankruptcy Code militated in favor of a broad construction favorable to the debtor. The Eighth Circuit holding is consistent with rulings in most other Circuits, but conflicts with recent decisions by the Third and Fourth Circuits. The conflict, together with the importance of the issue, prompted us to grant certiorari, 495 U. S. 918 (1990). We now reverse. I At the outset, we distinguish between the standard of proof that a creditor must satisfy in order to establish a valid claim against a bankrupt estate and the standard that a creditor who has established a valid claim must still satisfy in order to avoid dischargeability. The validity of a creditor’s claim is determined by rules of state law. See Vanston Bondholders Protective Comm. v. Green, 329 U. S. 156, 161 (1946). Since 1970, however, the issue of nondischarge-ability has been a matter of federal law governed by the terms of the Bankruptcy Code. See Brown v. Felsen, 442 U. S. 127, 129-130, 136 (1979). This distinction is the wellspring from which cases of this kind'flow. In this case, a creditor who reduced his fraud claim to a valid and final judgment in a jurisdiction that requires proof of fraud by a preponderance of the evidence seeks to minimize additional litigation by invoking collateral estoppel. If the preponderance standard also governs" }, { "docid": "1879399", "title": "", "text": "was not filed in good faith; and (3) the plan is not fair and equitable as required by § 1129(b) either because the proposed property transfer does not give BLC the indubitable equivalent of its claim, or because the proposed amortization does not reflect market terms. DISCUSSION I. Burden of Proof Under §§ 1129(a) and (b) Before embarking upon an analysis of the specific requirements of § 1129’s confirmation standards, it is important to determine the applicable burden of proof. The Bankruptcy Code does not articulate a specific standard of proof related to the debtors’ efforts to satisfy the provisions of § 1129. “In the face of this silence, courts may not imply a higher standard than the preponderance standard normally applied in civil proceedings.” In re Combs, 838 F.2d 112, 116 (4th Cir.1988). In Combs, the U.S. Court of Appeals for the Fourth Circuit considered the question of what standard of proof to require in the context of exceptions to discharge under § 523, with respect to which the Code does not specify a standard of proof. In that situation, the court applied the “normal” preponderance standard, having found no basis upon which to “justify judicial imposition of a heavier burden of proof on creditors seeking to have a debt determined nondischargeable under § 523(a)(6).” Id.; see also Whitson v. Middleton, 898 F.2d 950, 952 (4th Cir.1990) (applying preponderance of the evidence standard to a different subsection of § 523 (specifically, § 523(a)(9)) on grounds that “there is no reason to distinguish the conclusion reached in [Combs]”)- Later, in a § 727 proceeding where, again, the burden of proof was not specified, the Fourth Circuit held that it was “appropriate to reason by analogy,” applied the preponderance standard, and reiterated that when the Bankruptcy Code is silent as to standard of proof, courts may not require proof beyond a preponderance of the evidence. Farouki v. Emirates Bank Int’l, Ltd., 14 F.3d 244, 249-50 & n. 17 (4th Cir.1994). These Fourth Circuit cases align with the Supreme Court’s decision in Grogan v. Garner, wherein the Court discussed the relationship between" }, { "docid": "4757756", "title": "", "text": "Only one circuit of the Court of Appeals has addressed the question of which standard to apply in § 523(a)(6) cases. In Combs, the Fourth Circuit held that the standard of proof in § 523(a)(6) cases is by a preponderance of the evidence. It said: The Bankruptcy Code is silent as to the standard of proof necessary to establish the exceptions to discharge in § 523. In the face of this silence, courts may not imply a higher standard than the preponderance standard normally applied in civil proceedings. Although the “fresh start” philosophy of bankruptcy law requires that exceptions to discharge “be confined to those plainly expressed,” Gleason v. Thaw, 236 U.S. 558, 562, 35 S.Ct. 287, 289, 59 L.Ed. 717 (1915), this policy does not justify judicial imposition of a heavier burden of proof on creditors seeking to have a debt determined non-dischargeable under § 523(a)(6). Congress had reasons for enacting the exceptions to discharge in bankruptcy embodied in § 523. While bankruptcy proceedings are intended to afford debtors a “fresh start,” the provision at issue here expresses Congress’ determination that debts incurred as the result of a debtor’s willful and malicious injury of another are of a type that bankruptcy ought not to forgive. The balance of these competing policies does not require a heightened standard of proof of the § 523 exception, ... we hold that the policies of the Bankruptcy Code are best effectuated by requiring that creditors prove by a preponderance of the evidence the willfulness and maliciousness of the debtors’ acts under § 523(a)(6) and by waiting for Congress, not the courts, to signal a departure from this standard. Combs, 838 F.2d at 116. The bulk of the cases which even dare to elect one standard of proof over the other do so without explanation. Since they do not even attempt to persuade, they offer no persuasive authority on this question. The remainder offer tidbits of analysis, but on closer inspection, either the analysis or the case authority underlying it are suspect. For example, Wintrow merely cited Martin for the proposition that a §" }, { "docid": "1264212", "title": "", "text": "the plaintiff has failed to meet even the lower standard. Until now that is precisely what I have been able to do.” 4.13. One reason that it has become more important to face this question squarely is the increasing frequency with which bankruptcy courts are asked to decide whether issue preclusion applies in dis-chargeability actions. 4.14. Texas bankruptcy judges have confronted this same problem. See, e.g., In re Church, 69 B.R. 425 (Bankr.N.D.Tex.1987); In re McDonald, 73 B.R. 877 (Bankr.N.D.Tex.1987) (J. Abramson applying “clear and convincing” standard); and In re Nix, 92 B.R. 164 (Bankr.N.D.Tex.1988) (“... various bankruptcy courts [and one Circuit court] considering the burden of proof have concluded that in the absence of an express requirement in the state for a ‘clear and convincing’ standard, the burden of proof for a § 523(a)(6) claim is ‘preponderance of the evidence.’ ” (citations omitted). 4.15. In view of (i) the importance of the resolution of the question of the proper standard of proof in dischargeability and discharge cases, (ii) the shaky analytical underpinnings of the “clear and convincing” standard, (iii) recent Supreme Court cases which have disavowed the “clear and convincing” standard in analogous statutory fraud eases, see e.g. Herman & MacLean v. Huddleston, 459 U.S. 375, 103 5.Ct. 683, 74 L.Ed.2d 548 (1983) and (iv) the persuasive criticism of this standard by some of our colleagues on the bench, we refuse to “punt” and now hold that the standard of proof required in a § 523(a)(2)(A) case and the standard of proof required in a § 523(a)(6) case is “preponderance of the evidence.” V. Marrese Analysis — Part II 5.01 Where the state law is found to give preclusive effect to a judgment, the second part of the Marrese analysis requires the federal court to see if some federal policy exists which demands a different federal rule. 5.02 Byard found nothing in the Bankruptcy Code or Congressional Statements of intent pertaining to dischargeability provisions to indicate that the state rule of collateral estoppel would not apply in bankruptcy dischargeability litigation. Byard at 707. 5.03 To the contrary, the bankruptcy" }, { "docid": "6952528", "title": "", "text": "standard of preponderance of evidence. Evidently, defendant’s position is that this precludes the application of collateral estoppel, because a requirement of that doctrine, per Spilman v. Harley, 656 F.2d 224, 227 (6th Cir.1981), is that the state court must have used the same standard in evaluating the evidence as would be appropriate in a bankruptcy court in a dischargeability case. Defendant’s position is mistaken. At best, from defendant’s point of view, the Sixth Circuit Court of Appeals has made no clear declaration of the standard of proof to be applied in a proceeding under § 523(a)(6). Beyond that, we are persuaded by the able analysis of Bankruptcy Judge William A. Clark in In re Hall, 98 B.R. 777, 780 (Bankr.S.D.Ohio 1989), that the proper standard of proof for § 523(a)(6) is preponderance of the evidence. We add only that such a position furthers the policy of judicial economy, for to hold otherwise would commonly result in a second trial in the bankruptcy court utilizing exactly the same evidence as was presented in the state court. In our view, the mistaken notion that all proceedings under 11 U.S.C. § 523 require a standard of clear and convincing proof crept into bankruptcy because that is the correct standard for proceedings under § 523(a)(2) where debts incurred through fraud are denied discharge. That is the most common variety of § 523 proceedings and the clear and convincing standard is correct because it is the universal standard applied by all courts in order to make out a cause of action for fraud. It ought not to follow that that standard should apply in all § 523 proceedings. Defendant objects to any holding that the lost profits component of the Florida judgment is nondischargeable. If a state court judgment is given preclusive effect, as is the case here, a plaintiff is certainly entitled to compensatory damages. In re Adams, 761 F.2d 1422, 1427-8 (9th Cir.1985); In re Caldwell, 60 B.R. 214, 219 (Bankr.E.D.Tenn.1986). Lost profits are a component of compensatory damages. Restatement (2nd) of Contracts § 352. We hold that defendant’s objection to the award" }, { "docid": "1894898", "title": "", "text": "should be supported by clear and convincing evidence.” (Underscoring added). The Court said such a proceeding was a “charge equivalent to one of fraud, and must be established by the same kind of evidence required in a case of fraud in a court of equity. A mere preponderance of evidence in such a case is not enough.” Id. 362, 49 S.Ct. at 174. While the Supreme Court has used language setting forth the standard of proof in somewhat different words, the cases resolve themselves into the language of a preponderance of the evidence which is clear and convincing. See Southern Development Co. v. Silva, 125 U.S. 247 at 250, 8 S.Ct. 881 [at 882], 31 L.Ed. 678, “clear and decisive proof.” The reliance on Brown v. Buchanan to conclude that fraud be proved by clear and convincing evidence in the context of a bankruptcy has been carried over not just to dischargeability cases under section 523(a)(2) and (4), but also to eases under section 727. See e.g., In re Woerner. Ironically, however, the continued vitality of Brown v. Buchanan as precedent has been undermined by the Fourth Circuit’s decision in Combs v. Richardson, 838 F.2d 112 (4th Cir.) which holds the clear and convincing standard inapplicable to section 523(a)(6), and appears to call into question use of an elevated standard in bankruptcy for all issues including proof of fraud. Id. 838 F.2d at 116: The Bankruptcy Code is silent as to the standard of proof necessary to establish the exceptions to discharge in § 523. In the face of this silence, courts may not imply a higher standard that the preponderance standard normally applied in civil proceedings. See In re Parker, 17 B.C.D. 570, 572 (Bankr.E.D.Va.1988) (applying this language to conclude that fraud under section 727 may be proved by a preponderance of the evidence). In considering the appropriate standard to prove fraud under 11 U.S.C. § 727, of some relevance is the following statement in the legislative history: The next three grounds for denial of discharge center on the debtor’s wrongdoing in or in connection with the bankruptcy case." }, { "docid": "18521142", "title": "", "text": "it made this “pronouncement” was just another false financial statement, i.e. fraud, case like In re Martin, 761 F.2d 1163 (6th Cir.1985), I doubt it. This statement, too, then, is just dictum, and ought carry little weight in the determination of the appropriate standard of proof of this case. Borg-Warner Acceptance Corp. v. Watkins {In re Watkins ), 90 B.R. 848, 850, n. 3 (Bankr.E.D.Mich.1988). Because this court is not convinced that its own circuit court of appeals has decided the necessary degree of proof under section 523(a)(6), examination of other decisional law is appropriate. In particular, this court is convinced by the rationale contained in Combs v. Richardson, 838 F.2d 112 (4th Cir.1988), which specifically addresses the issue of the standard of proof required under section 523(a)(6), that a “preponderance” of the evidence standard, rather than a “clear and convincing” evidentiary standard, is appropriate under section 523(a)(6): The Bankruptcy Code is silent as to the standard of proof necessary to establish the exceptions to discharge in § 523. In the face of this silence, courts may not imply a higher standard than the preponderance standard normally applied in civil proceedings. Although the “fresh start” philosophy of bankruptcy law requires that exceptions to discharge “be confined to those plainly expressed,” (citation omitted), this policy does not justify judicial imposition of a heavier burden of proof on creditors seeking to have a debt determined nondischargeable under § 523(a)(6). Congress had reasons for enacting the exceptions to discharge in bankruptcy embodied in § 523. While bankruptcy proceedings are intended to afford debtors a “fresh start,” the provision at issue here expresses Congress’ determination that debts incurred as the result of a debtor’s willful and malicious injury of another are of a type that bankruptcy ought not to forgive. The balance of these competing policies does not require a heightened standard of proof of the § 523 exception, but does require that the bankruptcy court carefully determine that the prerequisites for collateral es-toppel have been fully satisfied.... [We] hold that the policies of the Bankruptcy Code are best effectuated by requiring that creditors" }, { "docid": "13612139", "title": "", "text": "i.e., willful and malicious injury by debtor to another’s property. In re Latch, 820 F.2d at 1163. Therefore, this Court finds the issues and elements required to prove the nondis-chargeability of a debt under Sections 523(a)(2), (4) and (6) are identical to those issues and elements litigated in the District Court. It is apparent from the record the second and third elements necessary to apply collateral estoppel have also been met. The issues were actually litigated before a jury in a trial that lasted six and one-half days and the issues previously litigated in the District Court action are an integral part of the dischargeability action. Pivotal to the collateral estoppel question is the issue of what standard of proof is required by this Court to determine a debt nondischargeable under Section 523(a)(2), (4) and (6). As stated above, the District Court’s standard of proof for fraud actions is preponderance of the evidence. Subsequent to the filing of the instant adversary proceeding, the Supreme Court determined the standard of proof in adversary proceedings under Section 523 is preponderance of evidence. Grogan v. Garner, — U.S. —, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991); In re Yanks, 931 F.2d at 42; Melnick v. Seifert (In re Seifert), 130 B.R. 607 (Bankr.M.D.Fla.1991). The Supreme Court did not articulate whether Grogan would be applied retroactively, but the Eleventh Circuit, without explicitly holding, did apply Grogan retroactively in In re Yanks. Assuming Grogan does apply retroactively, the standard of proof in this Court is identical to the standard of proof in the prior District Court litigation, and thus Scarfone is collaterally estopped from relitigating in this Court the same factual and legal issues which were previously litigated in the District Court. Prior to the Supreme Court’s decision in Grogan, the federal Courts of Appeals had been divided on the appropriate standard of proof in a Section 523(a)(2), (4) or (6) non-dischargeability action. The Eleventh Circuit had held the proper standard to prove fraud under a Section 523(a)(2), (4) or (6) action is clear and convincing. See In re Ikner, 883 F.2d at 986; Chrysler" }, { "docid": "15941861", "title": "", "text": "and (a)(6). Collateral Estoppel The primary argument raised by each party relates to collateral estoppel. The Court can grant summary judgment if it determines that collateral estoppel principles preclude it from conducting further proceedings on issues that have been litigated and ruled upon previously. Fischer v. Scarborough (In re Scarborough), 171 F.3d 638, 641 (8th Cir.1999). According to the Supreme Court, “if nondischargeability must be proved only by a preponderance of the evidence, all creditors who have secured fraud judgments, the elements of which are the same as those of the fraud discharge exception [in bankruptcy], will be exempt from discharge under collateral estoppel principles.” Grogan v. Garner, 498 U.S. 279, 285, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). The Court then examined the appropriate burden of proof under § 523 and held that the standard of proof for dischargeability exceptions in the code is the ordinary preponderance of the evidence standard. Id. at 291, 111 S.Ct. 654. Therefore, if the elements of fraud in the state court action are the same as those required under § 523, the Court must grant Countrywide’s motion for summary judgment. In determining whether the state court judgment is entitled to preclusive effect, the Court must apply the law of Arkansas. Scarborough, 171 F.3d at 641 (stating that the court must look to the substantive law of the forum state in applying collateral estoppel). In Arkansas, there are four elements required to establish collateral estoppel: “(1) the issue sought to be precluded must be the same as that involved in the prior litigation; (2) that issue must have been actually litigated; (3) the issue must have been determined by a valid and final judgment; and (4) the determination must have been essential to the judgment.” Riverdale Dev. Co. v. Ruffin Bldg. Sys., Inc., 356 Ark. 90, 146 S.W.3d 852, 855 (2004). Regarding the first element, Countrywide argues that the debt in the adversary proceeding is exempt from discharge because of the state court default judgment. Section 523(a)(2)(A) of the bankruptcy code states that discharge is not available to a debtor for debts obtained by" }, { "docid": "18521141", "title": "", "text": "neither required nor desirable: At page 1083 of the opinion [In re Ward], the court stated, “MHT, as the party seeking an exception from discharge in bankruptcy, had the burden to prove reliance by clear and convincing evidence.” In fact, its specific holding was that the lower courts’ factual determination that “MHT failed to meet its burden of introducing clear and convincing evidence that it conducted even the most superficial credit investigation” was “not clearly erroneous”. At p. 1084. The phrase, “as the party seeking an exception from discharge” (emphasis added) is troublesome. It is a generalization that could mean that all exceptions to discharge (including, presumably, that an assault was willful and malicious (§ 523(a)(6)); child support is owed (§ 523(a)(5)); a student loan debt is due (§ 523(a)(8)); a particular type of tax debt is owed (§ 523(a)(1)); a vehicular accident causing personal injury was the result of the debtor’s drunkenness (§ 523(a)(9)) must be proven by clear and convincing evidence. Perhaps the court means just that. But since the case in which it made this “pronouncement” was just another false financial statement, i.e. fraud, case like In re Martin, 761 F.2d 1163 (6th Cir.1985), I doubt it. This statement, too, then, is just dictum, and ought carry little weight in the determination of the appropriate standard of proof of this case. Borg-Warner Acceptance Corp. v. Watkins {In re Watkins ), 90 B.R. 848, 850, n. 3 (Bankr.E.D.Mich.1988). Because this court is not convinced that its own circuit court of appeals has decided the necessary degree of proof under section 523(a)(6), examination of other decisional law is appropriate. In particular, this court is convinced by the rationale contained in Combs v. Richardson, 838 F.2d 112 (4th Cir.1988), which specifically addresses the issue of the standard of proof required under section 523(a)(6), that a “preponderance” of the evidence standard, rather than a “clear and convincing” evidentiary standard, is appropriate under section 523(a)(6): The Bankruptcy Code is silent as to the standard of proof necessary to establish the exceptions to discharge in § 523. In the face of this silence," }, { "docid": "1264213", "title": "", "text": "“clear and convincing” standard, (iii) recent Supreme Court cases which have disavowed the “clear and convincing” standard in analogous statutory fraud eases, see e.g. Herman & MacLean v. Huddleston, 459 U.S. 375, 103 5.Ct. 683, 74 L.Ed.2d 548 (1983) and (iv) the persuasive criticism of this standard by some of our colleagues on the bench, we refuse to “punt” and now hold that the standard of proof required in a § 523(a)(2)(A) case and the standard of proof required in a § 523(a)(6) case is “preponderance of the evidence.” V. Marrese Analysis — Part II 5.01 Where the state law is found to give preclusive effect to a judgment, the second part of the Marrese analysis requires the federal court to see if some federal policy exists which demands a different federal rule. 5.02 Byard found nothing in the Bankruptcy Code or Congressional Statements of intent pertaining to dischargeability provisions to indicate that the state rule of collateral estoppel would not apply in bankruptcy dischargeability litigation. Byard at 707. 5.03 To the contrary, the bankruptcy court in Tennessee concluded that there is substantial federal justification for an exception to § 1738. See, In re Hall, 95 B.R. 553, 555-558 (Bankr.E.D.Tenn.1989). In so doing, the federal court would, according to Hall, follow the predominant view expressed in Spilman: “If the important issues were not actually litigated in the prior proceeding, as is the case with a default judgment, then collateral estoppel does not bar relit-igation in the bankruptcy court, (citations omitted)”. Spilman at 228. 5.04. The Carey Lumber Company decision and the comment in Shuler at 1258, n. 10 could indicate that the Fifth Circuit would not apply the state rule for issue preclusion when bankruptcy dischargeability litigation is involved. Hall presents a well reasoned case for finding and exception to § 1738. Hall at 555-558. This court’s ruling would not be affected however because it believes that the Fifth Circuit would, when the issue is squarely addressed, follow the Spilman analysis of default judgments. See, e.g., Shuler at 1257, n. 6; Poston at 870, n. 3. CONCLUSION The issues decided" }, { "docid": "6494530", "title": "", "text": "(clear and convincing). It should be noted that Bankruptcy Judge Yacos in Carney concluded that the clear and convincing standard was limited to “dischargeability questions involving a fraud element”. In re Carney, 68 B.R. at 657. The Court of Appeals for the Fourth Circuit in Combs v. Richardson, 838 F.2d 112 (4th Cir.1988), has suggested that the appropriate standard of proof to be applied in this Circuit in cases under § 523(a) is by preponderance of evidence. The specific holding in Combs was that under § 523(a)(6) a creditor must prove that a debtor’s acts were willful and malicious by a preponderance of evidence. Combs, 838 F.2d at 116. Yet, Combs employs broad language indicating the holding is not limited to § 523(a)(6) cases. The Fourth Circuit wrote: The Bankruptcy Code is silent as to the standard of proof necessary to establish the exceptions to discharge in § 523. In the face of this silence, courts may not imply a higher standard than the preponderance standard normally applied in civil proceedings. 838 F.2d at 116. Citing six eases, Combs notes that lower courts are divided on the question of appropriate burden of proof. The cases cited are not only willful and malicious conduct cases under Section 523(a)(6) but also fraud and embezzlement cases under Section 523(a)(2) and (a)(4). Because of the consistent reference to Section 523 generally and the cases cited to demonstrate the division of the lower courts, Combs can be interpreted as standing for the proposition that in the Fourth Circuit, the proper burden of proof under Section 523 is by a preponderance of the evidence. See also, Rowe v. Showalter (In re Showalter), 86 B.R. 877, 880 (Bankr.W. D.Va.1988), Kleiner v. Daboul (In re Daboul), 85 B.R. 197, 200, 17 B.C.D. 660, 662 (Bankr.D.Mass.1988). Chief Judge Martin V.B. Bostetter, Jr., of this district, has distinguished the holding of Combs v. Richardson, and held that an exception to discharge under § 523(a)(2) must be proven by clear and convincing evidence. Cowher’s Trucking, Inc. v. Zack (In re Zack), 99 B.R. 717 (Bankr.E.D.Va. 1989). However, in another decision, Judge" }, { "docid": "18521139", "title": "", "text": "where all the requirements of collateral estoppel are met, collateral estoppel should preclude relit-igation of factual issues.” Id. at 228. As set forth by the Sixth Circuit, the requirements of collateral estoppel are— 1) that the precise issues in the later proceedings have been raised in the prior proceeding, 2) that the issues were actually litigated in the prior proceeding, and 3) that the determinations were necessary to the outcome of the prior proceeding. Id. In addition, it must appear that, in determining the factual issues, the state court used standards identical to those utilized in dischargeability proceedings. Id. at 227. One standard requiring scrutiny by this court is the burden of proof used in the state court litigation. Currently a split of authority exists concerning the standard of proof required under section 523(a)(6) of the Bankruptcy Code; one line of cases applies a preponderance of the evidence standard, while the other requires clear and convincing evidence. In this court’s view, the Sixth Circuit has not unequivocally addressed the issue of the burden of proof in section 523(a)(6) proceedings. In Martin v. Bank of Germantown (In re Martin), 761 F.2d 1163, 1165 (1985), the Sixth Circuit explicitly stated that “[t]he party seeking an exception from discharge under section 523(a)(2) has the burden of proof by clear and convincing evidence,” but did not elaborate upon this statement nor indicate whether a clear and convincing standard of proof is appropriate for the remaining exceptions to discharge under section 523(a). Recently, however, the Sixth Circuit stated, without qualification, that a creditor, “as the party seeking an exception from discharge in bankruptcy, had the burden to prove reliance by clear and convincing evidence.” Manufacturer’s Hanover Trust Co. v. Ward (In re Ward), 857 F.2d 1082, 1083 (6th Cir.1988) (emphasis supplied). Although this statement is sufficiently broad to support the proposition that clear and convincing evidence is required under all of the discharge exceptions enumerated under section 523(a), this court is persuaded by the comments of The Honorable Arthur J. Spector, U.S. Bankruptcy Judge, that such an expansive reading of the Sixth Circuit’s statement is" }, { "docid": "1264207", "title": "", "text": "case of a judgment entered by confession, consent, or default, none of the issues is actually litigated. Therefore, the rule of this Section does not apply with respect to any issue in a subsequent action. The judgment may be conclusive, however, with respect to one or more issues if the parties have entered an agreement manifesting such an intention.” (emphasis added). 4.08. In light of Texas authority which conclusively adopts Restatement § 27 as the Texas rule for issue preclusion and the Texas courts reliance on the comments to § 27 of the Restatement, this court is persuaded that default judgments and Nihil Dicit Judgments do not present ultimate issues that were “actually litigated”. This court further believes that the Fifth Circuit, upon reconsideration of this issue in light of the full faith and credit statute and the Migra and Marrese decisions, if con fronted with a default or Nihil Dicit Judgment, would follow this view. C. Burden of Proof 4.09. Stowell’s second objection went to the burden of proof issue. The real dispute here is Stowells contention that the trial court finding that issues were proven by “clear and convincing evidence” was not necessary to its decision. The general rule in Texas is that issues tried by a state court in a civil proceeding need only to be proven by a preponderance of the credible evidence standard. 35 Tex.Jur. 3rd, Evidence, § 105 (see cases cited in n. 61) (1984). Because Stowell asserts that the burden of proof in dischargeability litigation, at least under Code § 523(a)(2)(A) and (a)(6) is by a clear and convincing standard, it is asserted that the difference in burden of proof means that the federal bankruptcy court should not afford any of the state court findings preclusive effect. 4.10. The question of whether the standard of proof in § 523 actions is “by clear and convincing evidence” or by a mere \"preponderance of the evidence” has been a matter of concern for this Court for some time. Many courts hold that the higher standard applies. Other courts have recently held in well reasoned opinions," }, { "docid": "6952527", "title": "", "text": "court, we must deal with the question of whether the judgment of that court should be accorded collateral estoppel effect. In this circuit, before collateral estoppel can be applied, the following requirements must be met: the issue at hand must have been raised in the prior proceeding, the issue must have been actually litigated, and the determination must have been necessary to the outcome. In re Pitner, 696 F.2d 447, 448 (6th Cir.1982). In this case, the act causing willful and malicious injury was intentional misrepresentation, and there is no question that that issue was central in the Florida court. It is undisputed that the issue was actually litigated. Finally, there can be no question that the finding of intentional misrepresentation was necessary before the court in Florida could award the damages that it did. In opposing plaintiffs motion, defendant argues that the elements of § 523(a)(6) must be established by a standard of clear and convincing evidence. The defendant says that the Florida court could reach the conclusion it did by applying only a standard of preponderance of evidence. Evidently, defendant’s position is that this precludes the application of collateral estoppel, because a requirement of that doctrine, per Spilman v. Harley, 656 F.2d 224, 227 (6th Cir.1981), is that the state court must have used the same standard in evaluating the evidence as would be appropriate in a bankruptcy court in a dischargeability case. Defendant’s position is mistaken. At best, from defendant’s point of view, the Sixth Circuit Court of Appeals has made no clear declaration of the standard of proof to be applied in a proceeding under § 523(a)(6). Beyond that, we are persuaded by the able analysis of Bankruptcy Judge William A. Clark in In re Hall, 98 B.R. 777, 780 (Bankr.S.D.Ohio 1989), that the proper standard of proof for § 523(a)(6) is preponderance of the evidence. We add only that such a position furthers the policy of judicial economy, for to hold otherwise would commonly result in a second trial in the bankruptcy court utilizing exactly the same evidence as was presented in the state court." }, { "docid": "18518187", "title": "", "text": "the fact that the jury could have premised its award on either theory because “malice for purposes of section 523(a)(6) can be established by a finding of implied or constructive malice.” Id. at 1263. Second, Yanks argues that the standard of proof in the state court action was substantially lower than that required to prove “willful and malicious injury” for the purposes of section 523(a)(6). Hoskins concedes that the evidentiary burden in the Florida action was proof by “preponderance of the evidence.” But, Yanks points out, the rule in this circuit has been that “the party seeking to except a debt from discharge must prove the willfulness and maliciousness of the act by clear and convincing evidence.” Rebhan, 842 F.2d at 1262. The portion oí'Rebhan requiring proof by clear and convincing evidence is no longer good law, however. In Grogan v. Garner, — U.S. -, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991), the Supreme Court concluded that “the standard of proof for the dischargeability exceptions in 11 U.S.C. § 523(a) is the ordinary preponderance-of-the-evidence standard.” Id. at -, 111 As a result, the evidentiary burden for Florida defamation actions and the standard of proof for the purposes of section 523(a)(6) are identical. S.Ct. at 661. Because the issues at stake and the standards of proof in the Florida defamation action and the dischargeability analysis under section 523(a)(6) are identical, Hoskins is entitled to invoke the doctrine of collateral estoppel. Accordingly, we REVERSE and REMAND for entry of judgment in favor of appellant. . We have previously held that the doctrine of collateral estoppel bars relitigation of an issue in bankruptcy court for section 523(a) purposes if three requirements are met: (1) that the issue at stake be identical to the one involved in the prior litigation; (2) that the issue have been actually litigated in the prior litigation; and (3) that the determination of the issue in the prior litigation have been a critical and necessary part of the judgment in that earlier action. In re Held, 734 F.2d 628, 629 (11th Cir.1984) (quoting Deweese v. Town of Palm Beach," } ]

[ { "docid": "5294143", "title": "", "text": "taken only at some designated place other than that stated in the notice * * * or the court may make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression.” Here again, no motion was filed by plaintiff asking that either deposition be not taken or that they be taken at some other place. As above noted, it is evident that plaintiff failed to appear at either deposition. It is likewise evident that if plaintiff was not satisfied with the time and place of the depositions the rules afforded her an opportunity to have the court, on motion, change the time and the place designated In the notices. The rules do not contemplate that a party may wait until after the date designated by the opposing party for the taking of the deposition to ask a modification of the terms of the notice by the court. Subsection (b), Rule 30, Federal Rules of Civil Procedure, provides that a motion thereunder must be seasonably made, which, if the rule is to have any meaning at all, must mean before the date designated in the notice for the taking of the deposition. Such interpretation was arrived at in the case of Dictograph Products, Inc., v. Kent-Worth Corporation, D.C.1947, 7 F.R.D. 543. In addition, it should be noted that at the time of the hearing in the instant proceedings no motion under subsections (a) and (b) had even then been filed by plaintiff. It was urged upon the hearing of this motion by counsel for plaintiff that plaintiff was under no duty to appear at the taking of her deposition for the reason that she was not served with a subpoena. The law is quite settled that such a contention is untenable. In Peitzman v. City of Illmo, 8 Cir., 1944, 141 F.2d 956, at pages 960 and 961 it is stated in the opinion of the court: “Service of the notice upon the attorney for defendants was all that was required to make it incumbent upon the parties to appear. Spaeth v. Warner Bros." } ]

[ { "docid": "22250516", "title": "", "text": "the officer who was to take his deposition, or at the place where his deposition was to be taken, on November 20, 1942, or at all. On December 4, 1942, appellees filed and served a verified* motion stating these facts and praying the court to strike out appellant’s complaint and enter a judgment by default against him, as provided in Rule 37(d) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. After due notice, the court heard the motion and, on December 21, 1942, made the following order: “It is ordered that [appellant] appear for the taking of his deposition at Phoenix, Arizona, January 11, 1943, at the offices of Messrs. Snell & Strouss, attorneys for [appellees] ; otherwise this complaint herein will be dismissed.” Appellant disregarded the order. He did not appear for the’taking of his deposition on January 11, 1943, or at all. On January 12, 1943, appellees moved the court to dismiss the action, as provided in Rule 37 (d). After due notice, the court heard the motion, granted it and, on January 18, 1943, entered judgment dismissing the action. From that judgment this appeal is prosecuted. The appeal is a frivolous one. The notice for taking appellant’s deposition was a proper notice and was properly served. It is immaterial, if true, that no subpoena was served on appellant, for he was a party, and therefore no subpoena was necessary. Nor is it material that appellant’s deposition was to be taken in the office of appellees’ attorneys. The suggestion that, because appellant resided in Oregon, the District Court of the United States for the District of Arizona, whose jurisdiction he had invoked, could not require him to give a deposition in Arizona is untenable. If he wished to be relieved from going to Arizona, he could and should have sought such relief by “motion seasonably made,” as provided in Rule 30(b) of the- Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. Instead, he disregarded the notice and the court’s order and wilfully failed to comply with either. Judgment affirmed. Rule 30(a) provides:" }, { "docid": "18979318", "title": "", "text": "discovery responses and available dates for scheduling Plaintiffs oral deposition but that Plaintiff is not responding, and the parties explain that, due to Plaintiffs failure to respond to his counsel, the parties were not able to resolve the issues presented in Defendant’s motion to compel. See Dkt. No. 18. The Court then ordered that Plaintiff file a written response to the motion by December 4, 2015. See Dkt. No. 19. Plaintiff has not done so. Legal Standards I.Failure to Appear for Deposition Federal Rule of Civil Procedure 37(d)(1)(A) provides that “[t]he court where the action is pending may, on motion, order sanctions if: (i) a party or a party’s officer, director, or managing agent - or a person designated under Rule 30(b)(6) or 31(a)(4) - fails, after being served with proper notice, to appear for that person’s deposition.” Fed. R. Civ. P. 37(d)(l)(A)(i). “A failure described in Rule 37(d)(1)(A) is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under [Federal Rule of Civil Procedure] 26(c).” Fed. R. Civ. P. 37(d)(2). Under Rule 37(d), “[sanctions may include any of the orders listed in [Federal Rule of Civil Procedure] 37(b)(2)(A)(i)-(vi),” and, “[i]nstead of or in addition to these sanctions, the court must require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(d)(3). II. Supplementing Discovery Responses Federal Rule of Civil Procedure 26(e)(1) provides that “[a] party.. .who has responded to an interrogatory, [or] request for production.. .must supplement or correct its.. .response: (A) in a timely manner if the party learns that in some material respect the.. .response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or (B) as ordered by the court.” Fed. R. Civ. P. 26(e)(1). Federal Rule" }, { "docid": "5294140", "title": "", "text": "ADAIR, District Judge. This case is before the court on defendants’ motion to dismiss the complaint for failure of plaintiff to appear for the taking of her discovery deposition as provided in subsection (d), Rule 37, Federal Rules of Civil Procedure, 28 U.S.C.A. On January 20, 1954, Marguerite Loosley, a resident of the city of Los Angeles, California, sued defendants, Helen Loosley Stone and Charles New-hall Stone, residents of the city of Moline,.Illinois, alleging that the defendants had alienated the affections of her husband, Frederick Edwin Loosley, and asking damages in the sum of $500,000. Various pleadings were thereafter filed by the defendants, directed to the complaint, which are still pending and undisposed of. On February 4, 1954, defendants’ counsel served upon plaintiff’s counsel a notice requesting the presence of plaintiff for the taking of her discovery deposition upon oral interrogatories on the 19th day of February, 1954, in the office of defendants’ counsel at Moline, Illinois. Thereafter; to-wit, On February 20, 1954, defendants’ counsel served upon plaintiff’s counsel another notice requesting presence of the plaintiff for the taking of her discovery deposition upon oral interrogatories on the first day of March, 1954, at the office of Don A. Ladenberger at Los Angeles, California, the residence of the plaintiff. On April 7, 1954, defendants filed the pending Motion to Dismiss the Complaint to which was attached affidavits of defendants’ counsel and notary public to the effect that plaintiff did not appear pursuant to either notice for the purpose of giving her deposition, although defendants’ counsel were present and ready to proceed. No counter-affidavits having been filed or evidence offered by plaintiff upon the hearing of this motion in contradiction to the allegations of defendants’ Motion or defendants’ affidavits thereto attached, such allegations and affidavits must be taken as established facts in this proceeding, accordingly upon the record it is obvious that plaintiff willfully failed to appear at both depositions. The notices appear to have been given pursuant to subsection (a), Rule 30, Federal Rules of Civil Procedure. That section provides as follows: “A party desiring to take the deposition of" }, { "docid": "1888054", "title": "", "text": "See Wells v. Oppenheimer & Co., Inc., 101 F.R.D. 358, 359 (S.D.N.Y.1984). Although a party seeking relief from judgment is entitled to have all doubts resolved in its favor, that party is not exempt from the requirement in Rule 11 that no motion is to be filed without careful consideration as to its basis in law and fact. Accordingly, the law firm of Sukenik, Segal & Graff is hereby taxed the attorneys’ fees, expenses and costs that plaintiffs were required to expend in opposition to the motion to vacate the default. Plaintiffs’ counsel are to provide this court with an application for reimbursement, supported by the appropriate documentation. Plaintiffs’ Motion for Contempt. In plaintiffs’ reply memorandum, filed November 19, 1984, plaintiffs state: “In view of the Court’s order dated October 17, 1984 commanding [SWI, Einsidler and Juno Export] to appear for depositions, the plaintiffs do not seek additional sanctions against these persons at this time.” Accordingly, and in view of the fact that SWI faces a substantial money judgment, the court, at this time, will not consider sanctions against Einsidler and his businesses for failure to comply with the subpoenas. It should be noted, however, that Einsidler and his counsel violated the fundamental principle that a subpoena cannot be ignored. See 5A Moore’s Federal Practice ¶ 45.03[6], at 45-20 to 45-21. If Einsidler genuinely believed that the subpoenas issued under New York Civil Practice Law and Rules were defective, his remedy was to move to quash. While no sanctions will be imposed at this time, the court will make a de novo determination of plaintiffs’ motion for contempt should Einsidler engage in any further dilatory tactics. Defendant’s Motion to Quash the Subpoena Duces Tecum. Defendant contends that the subpoena issued pursuant to Fed.R.Civ.P. 45(d)(1) should be quashed or modified for two reasons. First, it contends that the subpoena was improperly issued because plaintiffs did not serve a notice of deposition on Mrs. Einsidler before they obtained the subpoena. Rule 45(d)(1) provides: Proof of service of a notice to take a deposition ... constitutes a sufficient authorization for the issuance by" }, { "docid": "7392520", "title": "", "text": "Beard constituted a hardship, he should have seasonably moved for appropriate relief after his counsel first learned that plaintiffs’ counsel claimed the notice to have been served. That was, at the latest, when the instant motion was first on the calendar on June 25, 1953. This motion has been adjourned six times and was finally argued, at the court’s insistence, on October 20, 1953. In all that time no motion for relief under Rule 30(b) was brought on by the defendant. Defendant’s silence during this four month period lends credence to the assertion of plaintiffs’ attorney that negotiations, including those at the pre-trial conference on May 20, 1952, were had by him with defendant’s counsel for the production of the defendant in this district for examination. Under these circumstances, plaintiffs’ motion to strike defendant Beard’s answer is granted unless said defendant appears for the taking of his deposition upon oral examination at the office of the Clerk of this court, Room 601, United States Courthouse, within thirty days from the entry of an order on this motion. Settle order. . Collins v. Wayland, 9 Cir., 139 F.2d. 677, certiorari denied 322 U.S. 744, 64 S.Ct. 1151, 88 L.Ed. 1576. . F.R.Civ.P. 5(b). . F.R.Civ.P. 30b. . F.R.Civ.P. 37(d)." }, { "docid": "5294144", "title": "", "text": "rule is to have any meaning at all, must mean before the date designated in the notice for the taking of the deposition. Such interpretation was arrived at in the case of Dictograph Products, Inc., v. Kent-Worth Corporation, D.C.1947, 7 F.R.D. 543. In addition, it should be noted that at the time of the hearing in the instant proceedings no motion under subsections (a) and (b) had even then been filed by plaintiff. It was urged upon the hearing of this motion by counsel for plaintiff that plaintiff was under no duty to appear at the taking of her deposition for the reason that she was not served with a subpoena. The law is quite settled that such a contention is untenable. In Peitzman v. City of Illmo, 8 Cir., 1944, 141 F.2d 956, at pages 960 and 961 it is stated in the opinion of the court: “Service of the notice upon the attorney for defendants was all that was required to make it incumbent upon the parties to appear. Spaeth v. Warner Bros. Pictures, Inc., D.C. S.D.N.Y., 1 F.R.D. 729, 730. In Spaeth v. Warner Bros. Pictures, Inc., supra, District Judge Hulbert, in the course of his opinion, says: “ ‘It is not necessary to serve a subpoena on a party. A remedy upon his failure to appear, is a motion to strike out his pleading. Rule 37(d).’ “(3) Defendants urge that the order in fact punishes them for contempt of court, but there is a distinction between striking a pleading as punishment for contempt of court and striking it for violation of a rule of procedure. Hammond Packing Co. v. State of Arkansas, 212 U.S. 322, 29 S.Ct. 370, 53 L.Ed. 530, 15 Ann.Cas. 645. Rule 37(d) recognizes this distinction and provides that parties to an action who wilfully fail to attend and submit to examination on proper notice to take their depositions, become subject to the exercise of the power vested in the trial court to strike their pleadings and to enter judgment by default.” Plaintiff having wilfully failed to appear, it is the opinion of" }, { "docid": "672992", "title": "", "text": "of Dominion justify the appointment of a receiver to preserve the remaining assets of Dominion and to prevent any possible future dissipation of assets or corporate waste. It is significant that the reasons asserted by plaintiffs in support of their application for a receiver are as yet merely unproven allegations of wrongdoing and unsubstantiated claims of insolvency. The contentions in plaintiffs’ memoranda of law and the facts alleged in plaintiffs’ counsel’s affidavit do not satisfy the heavy burden placed upon plaintiffs to demonstrate clearly the necessity for the appointment of a receiver to prevent future dissipation or waste of trust assets. Therefore, plaintiffs’ motion for the appointment of a special counsel or, in the alternative, for the appointment of a receiver is hereby denied. Defendants Gross and David served by mail pursuant to Fed.R.Civ.P. rule 30(b) their notice to take depositions November 23, 1976 in which they scheduled four depositions for December 2 and 3, 1976. Plaintiffs’ counsel by affidavit stated that he did not receive such notice until November 26, 1976. Plaintiffs have moved for a protective order pursuant to Fed.R.Civ.P. rule 26(c) to stay the taking of depositions or, in the alternative, that such depositions be taken on specified terms and conditions. It is alleged that defendants’ scheduling of such depositions was oppressive, unduly burdensome and not made upon reasonable notice. By affidavit, plaintiffs’ counsel stated that the originally scheduled depositions had been adjourned by consent of all parties and had been rescheduled for January 24, 26 and 27, 1977. However, it appears that a misunderstanding arose between counsel concerning the sequence in which plaintiffs’ depositions would be taken. Defendants’ counsel by letter dated November 22, 1976 had indicated that upon reasonable notice the particular order of the taking of depositions could be altered to minimize the inconvenience of the parties. By letter dated December 30, 1976, plaintiffs’ counsel proposed that the depositions of the plaintiffs be taken in the order their names appeared in the caption of the complaint. Defendants’ counsel insisted that the original sequence in the notice to take depositions be held intact and merely" }, { "docid": "3559460", "title": "", "text": "denied Mr. Burke’s motion for a protective order, and on August 26 granted plaintiffs’ motion to compel and awarded attorneys’ fees and costs involved in obtaining such order. The court in this hearing issued an oral warning to Mr. Burke. On September 6, 1985, plaintiffs filed a second motion to compel a response to interrogatories and the request for production. On September 9, a written order was entered on the August 26 oral grant of the motion to compel. Mr. Burke was again noticed for deposition for October 10, 1985. He offered December 15 as an alternate date which was rejected by plaintiffs’ counsel. On October 9, Mr. Burke offered November 11 as an alternate date, but was informed that he was expected to appear October 10. He failed to appear. On October 30, plaintiffs filed a third motion to compel, and for sanctions. On November 7, plaintiffs received a letter from counsel for Mr. Burke that he would be available in Atlanta on November 11 for deposition. Plaintiffs attempted to contact him on November 7 and 8, and on November 8, counsel for Mr. Burke called plaintiffs and stated that Mr. Burke would be available for two hours at the Delta Crown Room at Hartsfield International Airport at 6:00 a.m. on November 11. Later that day, counsel for Mr. Burke called and stated that the Delta Crown Room was not open at 6:00 a.m. and suggested Mr. Burke’s hotel room. Counsel concurred not to go forward. Plaintiffs moved for an order under Rule 37 of the Federal Rules of Civil Procedure striking the answer of defendant Tom Burke and for entry of default judgment. After a hearing on November 26, 1985, the district court granted the motion. Rule 37(d) of the Federal Rules of Civil Procedure, dealing with sanctions used when a party fails to cooperate in discovery, allows the court to strike out pleadings and render default judgment against the disobedient party. In Hashemi v. Campaigner Publications, Inc., 737 F.2d 1538 (11th Cir.1984), the court held that although the sanction of dismissal is extreme, the district court has" }, { "docid": "672993", "title": "", "text": "for a protective order pursuant to Fed.R.Civ.P. rule 26(c) to stay the taking of depositions or, in the alternative, that such depositions be taken on specified terms and conditions. It is alleged that defendants’ scheduling of such depositions was oppressive, unduly burdensome and not made upon reasonable notice. By affidavit, plaintiffs’ counsel stated that the originally scheduled depositions had been adjourned by consent of all parties and had been rescheduled for January 24, 26 and 27, 1977. However, it appears that a misunderstanding arose between counsel concerning the sequence in which plaintiffs’ depositions would be taken. Defendants’ counsel by letter dated November 22, 1976 had indicated that upon reasonable notice the particular order of the taking of depositions could be altered to minimize the inconvenience of the parties. By letter dated December 30, 1976, plaintiffs’ counsel proposed that the depositions of the plaintiffs be taken in the order their names appeared in the caption of the complaint. Defendants’ counsel insisted that the original sequence in the notice to take depositions be held intact and merely shift ed backwards. Defendants have cross-moved pursuant to Fed.R.Civ.P. rule 37(d) for sanctions and for security for costs because of plaintiffs’ actions and failure to attend the scheduled depositions. .The passage of time since plaintiffs filed their motion for a protective order has altered somewhat the posture of such motion and the grounds asserted therein for entry of such order. The dates upon which the depositions were originally scheduled and rescheduled have passed and the motions to dismiss have now been disposed of. It should nevertheless be observed that defendants’ notice to take depositions was served with an unreasonably short period of time and at a time when the parties’ efforts were primarily being directed to a motion for change of venue and numerous motions to dismiss. Because of this, plaintiffs’ action in seeking a protective order was not unreasonable. Furthermore, the subsequent problems which developed concerning the scheduling-of depositions cannot be attributed to flagrant or bad faith conduct on the part of either counsel for plaintiffs or defendants. Therefore, plaintiffs’ motion for a protective" }, { "docid": "5294141", "title": "", "text": "plaintiff for the taking of her discovery deposition upon oral interrogatories on the first day of March, 1954, at the office of Don A. Ladenberger at Los Angeles, California, the residence of the plaintiff. On April 7, 1954, defendants filed the pending Motion to Dismiss the Complaint to which was attached affidavits of defendants’ counsel and notary public to the effect that plaintiff did not appear pursuant to either notice for the purpose of giving her deposition, although defendants’ counsel were present and ready to proceed. No counter-affidavits having been filed or evidence offered by plaintiff upon the hearing of this motion in contradiction to the allegations of defendants’ Motion or defendants’ affidavits thereto attached, such allegations and affidavits must be taken as established facts in this proceeding, accordingly upon the record it is obvious that plaintiff willfully failed to appear at both depositions. The notices appear to have been given pursuant to subsection (a), Rule 30, Federal Rules of Civil Procedure. That section provides as follows: “A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs. On motion of any party upon whom the notice is served, the court may for cause shown enlarge or shorten the time.” No motion was filed by plaintiff to enlarge the time for the taking of either deposition. Subsection (b), Rule 30, Federal Rules of Civil Procedure provides as follows: “After notice is served for taking a deposition by oral examination, upon motion seasonably made by any party or by the person to be examined and upon notice and for good cause shown, the court in which the action is pending may make an or-, der that the deposition shall not be taken, or that it may be" }, { "docid": "22190761", "title": "", "text": "resulting flexibility as to sanctions eliminates any need to retain the requirement that the failure to appear or respond be ‘wilful.’ The concept of ‘wilful failure’ is at best subtle and difficult, and the cases do not supply a bright line. Many courts have imposed sanctions without referring to wilfullness. E. g., Milewski v. Schneider Transportation Co., 238 F.2d 397 (6th Cir. 1956); Dictograph Products, Inc. v. Kentworth Corp., 7 F.R.D. 543 (W.D.Ky.1947). In addition, in view of the possibility of light sanctions, even a negligent failure should come within 37(d). If default is caused by counsel’s ignorance of Federal practice, cf. Dunn v. Pa. R.R., 96 F.Supp. 597 (N.D.Ohio 1951), or by his preoccupation with another aspect of the case, cf. Maurer-Neuer, Inc. v. United Packinghouse Workers, 26 F.R.D. 139 (D.Kan.1960), dismissal of the action and default judgment are not justified, but the imposition of expenses and fees may well be. ‘Wilfullness’ continues to play a role, along with various other factors, in the choice of sanctions. Thus, the scheme conforms to Rule 37(b) as construed by the Supreme Court in Soeiete Internationale v. Rogers, 357 U.S. 197, 208, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958).” Another question raised concerns the propriety of applying the sanction of expenses and fees to the defendant’s managing agent. In the answers to the interrogatories verified by Haffkine, it states that Haffkine is the sole officer of Hooker Music. . Consequently, as a corporation must speak through an individual, 4A Moore’s 133.07 at 33-44, there is no doubt that Haffkine was the only individual who could answer the interrogatories for the corporate defendant. Likewise, as the only corporate officer, Haffkine was responsible for managing the litigation for the defendant. While Rule 37(b) provides that an attorney advising a disobedient party as well as the party may be ordered to pay expenses and attorney’s fees, there is no explicit provision in the Rule to extend that sanction to a corporate officer who is responsible for the failure to comply. No cases on point have been located. However, Rule 37(b) does provide that the court" }, { "docid": "22979971", "title": "", "text": "HINCKS, Circuit Judge. The seaman’s action was commenced by filing a complaint on October 17, 1952. The defendant served a notice to take the deposition of the plaintiff on February 2, 1953, and the notice was made returnable on February 19, 1953. By June 23, 1953, more than four and one-half months later, the plaintiff had not presented himself for his deposition. Pursuant to Rule 37(d) of the Federal Rules of Civil Procedure, 28 U.S.C.A. defendant made a motion to dismiss and the trial court ruled that the motion would be granted unless the plaintiff appeared to give his deposition by September 8, 1953, — an additional 60 days. But plaintiff still failed to appear, and on September 23, 1953 the case was dismissed with prejudice under Rule 41(b). Plaintiff now contends that the trial court should have dismissed the case without prejudice under 41(a) (2) of the Federal Rules of Civil Procedure. But Rule 41(b) provides: “For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him”. This provision was plainly applicable. Appellant sought to vacate the judgment entered against him under Rule 60(b) of the Federal Rules of Civil Procedure on the ground of excusable neglect, — this on the assertion that a staff member in the office of plaintiff’s counsel failed to note the September 8 deadline in the office tickler. The trial court denied relief. Motions brought under Rule 60(b) invoke the discretionary power of the trial court. In denying this motion, we see no abuse of the discretion thus granted. The neglect seems to arise more from the plaintiff’s personal inaction than from any oversight in his counsel’s office. For aught that appears, if the tickler entry had been made the plaintiff would still have failed to appear. The plaintiff is in this dilemma: if, having brought suit, he failed for seven months to keep in reasonably close touch with his lawyer, his personal neglect was not absolved by the negligence of his" }, { "docid": "3966855", "title": "", "text": "“other circumstances make an award of expenses unjust.” In this case, the court finds that plaintiffs’ motion for a protective order was not substantially justified and that no other circumstances exist which would make an award of expenses in favor of defendants unjust. In addition, plaintiffs have submitted nothing-in opposition to defendants’ motions to compel. There is thus no basis on which the court could find plaintiffs’ actions to have been “substantially justified” with respect to the matters raised in the motions to compel. Moreover, the court is convinced that responsibility for the discovery abuses which have occurred in this case rests solely upon plaintiffs’ lead counsel, Mr. David T. Hasbrook, and not upon the individual plaintiffs or their local counsel. Accordingly, Mr. Has-brook will be ordered to pay the reasonable expenses, including attorneys fees, incurred by defendants in opposing plaintiffs’ motion for a protective order and presenting their motions to compel discovery. The court declines to award expenses or attorneys fees in connection with the resumption and completion of plaintiffs’ depositions. See American Hangar Inc., 105 F.R.D. at 176. Defendants are directed to submit affidavits itemizing and supporting their fee and expense claims within thirty (30) days of this date. Order For the foregoing reasons, plaintiffs’ motion for a protective order is DENIED, and defendants’ motions to compel discovery are GRANTED. It is further ORDERED as follows: 1. The depositions of plaintiffs Langley and Smith shall be resumed under the direct supervision of the court in Room 231 of the Federal Building in South Bend, Indiana, at times and dates to be established during a telephone conference between the court and counsel on December 16, 1991 at 9:30 a.m.. The court will initiate the conference call. Defendants shall be responsible for retaining a private certified court reporter for the depositions. 2. The deposition of plaintiff Hipsher may be resumed, at the option of defendants, upon notice issued within twenty (20) days of this date. 3. Plaintiffs shall produce all documents and materials requested in Item C of defendant Nolte’s request for production, and shall provide proper identification of all" }, { "docid": "17282838", "title": "", "text": "plaintiffs document requests and on December 29, 2004, defendants supplemented that response. Id. On January 3, 2005, I had a telephone conference call with counsel. Following the call, I ordered, inter alia, defendants to reply to any outstanding interrogatories by January 17, 2005, and indicated that plaintiff could, by the same date, move to compel if the answers were not received. Plains. Mem., Exhibit 3. I also indicated that the parties would have until January 17, 2005 to schedule any remaining depositions and that plaintiff would have 7 hours to depose Dr. Hammond and the 30(b)(6) witness and 3.5 hours for each remaining witness. Id. On February 3, 2005, plaintiff filed the instant motion. II. Plaintiff’s Motion Plaintiff claims that the defendants have “willfully violated two of the Court’s orders and ignored discovery obligations under the Federal Rules of Civil Procedure to respond to interrogatories and appear for deposition” and thus has moved for sanctions under Rule 37(b)(2) and 37(d). Plains. Mot. at 1. First, plaintiff claims that defendants violated the court’s orders of June 3, 2004 and January 3, 2005 by failing to respond to plaintiffs interrogatories. Plains. Mem. at 1. Second, plaintiff claims that defendants violated the court’s order of January 3, 2005 by failing to schedule all remaining depositions by January 17, 2005. Id. Plaintiff therefore asks the court to do the following: 1) enter a default judgment against defendants, 2) hold defendants in contempt and levy a monetary sanction against them, and 3) award plaintiff its expenses and associated attorneys fees. Plains. Mem. at 2. III. Legal Standard As I noted most recently in the case of Peterson v. Hantman, 227 F.R.D. 13 (D.D.C. 2005): Under Federal Rule of Civil Procedure 37, a court may sanction a party that fails to comply with a discovery order. Fed. R.Civ.P. 37(b)(2). The Federal Rules authorize a wide array of sanctions, including staying the proceedings pending compliance with a court order, taking certain facts as established, prohibiting a party from introducing certain matters into evidence, finding a party in contempt of court, and dismissing the action or any part" }, { "docid": "18284096", "title": "", "text": "Insofar as the request for sanctions pursuant to Rule 37 is concerned, in view of the fact plaintiffs were presented the invoice for the costs of producing some of the documents and were advised no others would be forthcoming unless plaintiffs bore the cost of producing same, it cannot be said that the plaintiffs lacked substantial justification in filing the motion. The attorney for defendant FNBG also alleges in his affidavit that he was served by plaintiffs’ counsel with notice of the taking of the deposition of defendant Arthur Skula; that he expended considerable time as well as travel expenses in preparing for same; that when he arrived at the office of plaintiffs’ local counsel in Sevierville, he was advised that Mr. Skula would not appear and that through some oversight he had not been notified earlier. From the copy of the letter from plaintiffs’ attorney to defendant’s attorney, attached to his affidavit, it appears that plaintiffs’ attorneys were unable to contact Mr. Skula to confirm his presence for discovery. The plaintiffs have not responded to this motion of defendant FNBG. The undersigned agrees with defendant’s contention that under Rule 30(g), Federal Rules of Civil Procedure, the defendant is entitled to be reimbursed for expenses incurred here. From the itemization attached to the attorney’s affidavit, it appears 7.5 hours work in preparation and driving time are involved, at $85.00 per hour, which the undersigned deems to be reasonable. It is therefore ORDERED that defendant FNBG have and recover of the plaintiffs the sum of $637.50 as reasonable expenses and attorneys’ fees for failure to attend the noticed deposition. Rule 30(g), Federal Rules of Civil Procedure. The motion of defendant FNBG for sanctions in all other respects is DENIED. Rule 72(a), supra. The plaintiffs and FNBG shall endeavor in good faith to agree upon a protective order which will protect the privacy rights of bank customers from disclosure to anyone not immediately involved in this litigation. If the parties cannot agree on such a protective order within 10 days of entry hereof, they should seek relief from the undersigned. There is" }, { "docid": "7392519", "title": "", "text": "SUGARMAN, District Judge. Plaintiffs move for an order striking the answer of Marcus D. Beard, one of the defendants, for his failure to appear for examination on oral deposition pursuant to a notice dated January 7, 1952. Beard’s attorneys oppose this motion, citing F.R.Civ.P. 45(d) (2), 28 U.S.C.A., upon the ground that he resides in North Carolina and the moving papers fail to state that a subpoena was served upon him. That rule, when read in conjunction with F.R.Civ.P. 26(a), applies only to the examination of a witness. Subpoena need not be served upon a party for the taking of his deposition pursuant to notice. Defendant’s attorneys also oppose this motion upon the ground that their “files fail to disclose” that a copy of such notice was served upon them and they do not recall having received or seen it. However, plaintiffs’ attorney states by affidavit that a copy thereof was served by mail upon defendant’s attorneys on January 7, 1952. Such service was complete on mailing. If the examination in this district of defendant Beard constituted a hardship, he should have seasonably moved for appropriate relief after his counsel first learned that plaintiffs’ counsel claimed the notice to have been served. That was, at the latest, when the instant motion was first on the calendar on June 25, 1953. This motion has been adjourned six times and was finally argued, at the court’s insistence, on October 20, 1953. In all that time no motion for relief under Rule 30(b) was brought on by the defendant. Defendant’s silence during this four month period lends credence to the assertion of plaintiffs’ attorney that negotiations, including those at the pre-trial conference on May 20, 1952, were had by him with defendant’s counsel for the production of the defendant in this district for examination. Under these circumstances, plaintiffs’ motion to strike defendant Beard’s answer is granted unless said defendant appears for the taking of his deposition upon oral examination at the office of the Clerk of this court, Room 601, United States Courthouse, within thirty days from the entry of an order on" }, { "docid": "23080441", "title": "", "text": "deciding which sanctions to impose: In addition, in view of the possibility of light sanctions, even a negligent failure should come within Rule 37(d). If default is caused by counsel’s ignorance of Federal practice, or by his preoccupation with another aspect of the case, dismissal of the action and default judgment are not justified, but the imposition of expenses and fees may well be. (Citations omitted.) See also Marquis v. Chrysler Corp., 577 F.2d 624, 642 (9th Cir.1978) (even negligent failure to allow reasonable discovery may be punished). This circuit has upheld a sanction as severe as dismissal for failure to comply with discovery orders. See, e.g., Sigliano v. Mendoza, 642 F.2d 309, 310 (9th Cir.1981) (dismissal for failure to answer interrogatories); Pioche Mines Consolidated, Inc. v. Dolman, 333 F.2d 257, 269 (9th Cir.1964) (dismissal for willful failure to attend deposition), cert. denied, 380 U.S. 956, 85 S.Ct. 1081, 13 L.Ed.2d 972 (1965); Fong v. United States, 300 F.2d 400, 409 (9th Cir.) (entry of default judgment for failure to resume depositions), cert. denied, 370 U.S. 938, 82 S.Ct. 1584, 8 L.Ed.2d 807 (1962). See also Al Barnett & Son, Inc. v. Outboard Marine Corp., 611 F.2d 32, 35 (3d Cir.1979) (dismissal for failure to attend deposition). Other courts have specifically approved the award of attorneys’ fees and costs to a party when the other party fails to appear for its Own deposition. See Weigel v. Shapiro, 608 F.2d 268, 272 (7th Cir.1979) (failure to answer any questions at deposition treated as failure to appear and expenses awarded accordingly); Bosworth v. Record Data of Maryland, Inc., 102 F.R.D. 518 (D.Md.1984) (plaintiff’s financial indigency did not excuse her from liability for costs and fees for failure to attend properly noticed deposition); Bray v. Memphis State University, 88 F.R.D. 90, 91 (W.D.Tenn. 1980) (plaintiff ordered to pay opposing counsel’s travel costs and court reporter’s fees for failure to attend her deposition); Bergeron v. Leo Inns, Inc., 87 F.R.D. 486, 486-87 (M.D.Pa.1980) (although plaintiff also at fault for providing inadequate notice of deposition, defendant ordered to pay plaintiff’s fees for failure to appear)." }, { "docid": "11277901", "title": "", "text": "30, 1989; k. Defendants’ Notice of Deposition (#89), filed on October 30, 1989; l. Defendants’ Notice of Deposition (#90), filed on October 30, 1989; m. Stipulation and Order For Extension of Discovery Cutoff (# 93), filed on December 1, 1989; n. Joint Motion By Plaintiffs and Defendants For a Stay of Discovery (# 94), filed on December 11, 1989; o. Stipulation and Order Respecting Confidentiality of Documents (# 97), filed on April 30, 1990; p. Stipulation to Extend Time For Filing of Discovery Statement (# 99), filed on September 26, 1991; q. Joint Discovery Statement' (# 100), filed on October 7, 1991; r. Joint Stipulation of Dismissal of Certain Claims (# 103), filed on December 24, 1991; and, s. Joint Motion By Plaintiffs and Defendants For Continuation of Trial Date and Extension of Discovery (# 106), filed on March 10, 1991. Each document was served on plaintiffs’ counsel pursuant to Rule 5 of the Federal Rules of Civil Procedure. Additionally, plaintiffs’ counsel served the following documents on defendant GIL-MAN’S counsel of record, Vargas & Bartlett and Mayer, Brown & Platt, pursuant to Rule 5 of the Federal Rules of Civil Procedure: a. Plaintiffs’ Opposition to Defendants’ Motion to Dismiss (#31), filed on May 16, 1988; b. Motion By Plaintiffs For Leave to Amend Complaint (#34), filed on May , 16, 1988; e. Addendum to Plaintiffs’ Motion For Leave to Amend Complaint (# 41), filed on June 29, 1988; d. Notice of Appeal (#48), filed on November 3, 1988; e. Notice of Change of Address (#54), filed on November 7, 1988; f. Motion for Enlargement of Time to Respond to Defendants’ Motion to Strike (# 58), filed on January 10, 1989; g. Motion For Leave of Court For Withdrawal of Counsel (# 60), filed on January 24, 1989; h. Motion to Withdraw as Counsel of Record (#62), filed on February 13, 1989; i. Motion For Enlargement of Time to Respond to Defendants’ Motion (#63), filed on February 16, 1989; j. Motion For Enlargement of Time to Respond to Defendants’ First Request For Production of Documents to Plaintiffs (# 64), filed on" }, { "docid": "3966856", "title": "", "text": "Inc., 105 F.R.D. at 176. Defendants are directed to submit affidavits itemizing and supporting their fee and expense claims within thirty (30) days of this date. Order For the foregoing reasons, plaintiffs’ motion for a protective order is DENIED, and defendants’ motions to compel discovery are GRANTED. It is further ORDERED as follows: 1. The depositions of plaintiffs Langley and Smith shall be resumed under the direct supervision of the court in Room 231 of the Federal Building in South Bend, Indiana, at times and dates to be established during a telephone conference between the court and counsel on December 16, 1991 at 9:30 a.m.. The court will initiate the conference call. Defendants shall be responsible for retaining a private certified court reporter for the depositions. 2. The deposition of plaintiff Hipsher may be resumed, at the option of defendants, upon notice issued within twenty (20) days of this date. 3. Plaintiffs shall produce all documents and materials requested in Item C of defendant Nolte’s request for production, and shall provide proper identification of all documents or materials covered by Item E of his request, within twenty (20) days of this date. 4. Defendants shall immediately provide plaintiffs’ counsel with appropriate consent forms authorizing the release of medical and counseling records. Plaintiffs Smith, Langley and Hipsher shall execute and return the consent forms to counsel for LCSC, and plaintiff Smith shall return her consent forms to counsel for defendant Nolte, within twenty (20) days of this date. Copies of all documents and records obtained through use of such consents shall be provided to plaintiffs’ counsel as the records are received. 5. Plaintiffs Langley and Hipsher shall serve full and complete answers to LCSC’s interrogatories upon counsel for LCSC within twenty (20) days of this date. 6. Plaintiffs shall produce all documents and objects described in the subpoenas duces tecum to counsel for LCSC, within twenty (20) days of this date. SO ORDERED. . For example, if the party taking a deposition should limit direct examination to a particular issue, Fed.R.Evid. 611(b) would suggest that cross-examination be limited to the subject" }, { "docid": "7172912", "title": "", "text": "on the other hand contends that a service upon defendant made at the Pittsburgh registered office by the United States Marshal is good and that the two subsequent services were no more than surplusage. It should be observed that before defendant had filed any motions, plaintiff, on November 27, 1962, served a notice of the taking of depositions upon defendant’s counsel. Under the notice defendant’s President and its nine Vice Presidents would be required to come to Pittsburgh for depositions to be taken at plaintiff’s counsel's law office. The filing of the deposition notice precipitated counter-measures by defendant’s attorney, i. e. the Texas action was filed December 7, 1962, and on the same date a motion was filed in this court for a protective order on the notice for taking depositions. On December 11, 1962, defendant filed a motion to dismiss the process served November 7, 1962. In the meantime Judge Sorg of this court issued a temporary restraining order enjoining defendant from prosecuting the Texas action. On December 20,1962, defendant filed the instant motion for a change of venue. Defendant later filed an amendment to that motion and on January 11, 1963, defendant filed a second motion to dismiss as improper the service obtained December 13,1962. The case is presently pending before me on all motions. Preliminarily this court will pass upon the issue as to improper service raised in two motions by defendant. As I see it, counsel have overlooked two or three fundamental things. The first is that Rule 3 of the Federal Rules of Civil Procedure flatly states that a civil action is commenced by filing a complaint with the court. As Judge Picard said in Schram v. Koppin, 35 F.Supp. 313 (E.D.Michigan, S.D.1940), soon after the rules were adopted: “ * * * There is no provision within which time service must be made.” He goes on to say that when an issue is raised regarding the time in which a service is to be made, it is a question of due diligence which in turn is to be decided by the court. This issue" } ]

[ { "docid": "8435622", "title": "", "text": "person liable to arrest is being, or has been committed, by any person, such person shall be arrested or, if escaping to shore, shall be immediately pursued and arrested on shore, or other lawful and appropriate action shall be taken; or, if it shall appear that a breach of the laws of the United States has been committed so as to render such vessel, or the merchandise, or any part thereof, on board of, or brought into the United States by, such vessel, liable to forfeiture, or so as to render such vessel liable to a fine or penalty and if necessary to secure such fine or penalty, such vessel or such merchandise, or both, shall be seized. . Although initially the defendants had challenged the constitutionality of the search of the cargo hold, that challenge was later expressly waived. See 507 F.Supp. at 482, 487. These waivers may well have been prompted by the Supreme Court’s decisions in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), and United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), which ruled that persons having neither a property nor a possessory interest in the property seized, and having no legitimate expectation of privacy in the area searched have no standing to challenge the constitutionality of the search. . In their brief on appeal, defendants state that the district court found “authority for the intrusion ... in both 14 U.S.C. § 89(a) and Panama’s consent (A. 19-21). Such authority is not here an issue.” We note that § 89 has been held to allow boarding of a foreign flag vessel in circumstances similar to these. United States v. Williams, 617 F.2d 1063, 1076 (5th Cir. 1980) (en banc), United States v. Dominguez, 604 F.2d 304, 308 (4th Cir. 1979), cert. denied, 444 U.S. 1014, 100 S.Ct. 664, 62 L.Ed.2d 644 (1980). . The government advances two alternative grounds on which it urges us to uphold the boarding of the ROONDIEP. First, it argues that the Fourth Amendment simply does not apply to searches and" } ]

[ { "docid": "4078405", "title": "", "text": "and boarding of the vessel were accomplished in an unreasonably intrusive manner. The RICARDO stopped immediately upon being asked to do so, a request which followed the RICARDO crew member’s thumbs-up signal in response to the Coast Guard’s attempted request to board. The Coast Guard made no show of force to accomplish the stopping. Nor was force used in the boarding. The court found that although the boarding party carried weapons, they kept their weapons pointed in the air and never aimed them at the defendants. Likewise, the machine gun aboard the DUANE was always pointed in the air rather than at the RICARDO, and the DUANE’s five-inch gun was never loaded or manned. Given the governmental interest in preventing the smuggling of narcotics into the United States, we conclude that in the totality of the circumstances, including the facts that the RICARDO was originally seen to be headed on a course toward the United States mainland, that there was a reasonable basis for suspecting that the RICARDO was engaged in smuggling marijuana, and that there was a minimal show of force in connection with the stopping and boarding, defendants’ constitutional challenge to the stopping and boarding was properly rejected. With that rejection, any challenge by the defendants to the lawfulness of the seizure of the marijuana must also fail, since defendants have no personal rights, see Part II.B. above, to challenge the seizure independently of the events that preceded it. United States v. Williams, supra, 589 F.2d at 214. CONCLUSION The judgments of conviction are vacated and the matter is remanded to the district court for such further proceedings as may be appropriate with respect to the question of the jurisdiction of the United States over the RICARDO. . Defendants Mayorga, Angulo-Quinones, Vargas-Rios, Barker-Michel, Nunez-Riasco, Espino-sa Sanchez, and Osorio-Alvarez each received sentences of imprisonment of four years and nine months and special parole terms of ten years. They are currently incarcerated. Defendants Cordoba-Lezcano, Castenad-Garjales, Pinto-Mejia, Vello-Garcia, and Cuevas-Viatela each received sentences of imprisonment of four years and special parole terms of five years, with six months of the sentences" }, { "docid": "4078376", "title": "", "text": "the document into evidence over defendants’ objections that admission was not authorized by Rule 803(8) and would violate their rights of confrontation under the Sixth Amendment to the Constitution. In a ruling announced on October 20, 1982, the court stated that it had considered the Venezuelan Certificate and confirmed its September 30, 1982 finding that the RICARDO was a stateless vessel at the time of its seizure. Accordingly, the court adhered to its decision denying defendants’ motion to dismiss the indictment for lack of jurisdiction. 2. The Denial of the Suppression Motions Following the evidentiary hearing, the district court denied defendants’ motions to suppress the marijuana seized from the RICARDO. The court ruled that, in all the circumstances set forth above, the Coast Guard’s stopping, boarding, and search of the RICARDO were based upon a reasonable suspicion that the vessel was engaged in narcotics smuggling. In addition, the court held that defendants had voluntarily consented to the stopping, boarding, and search. 3. The Conditional Pleas of Guilty Following these rulings, each defendant entered a conditional plea of guilty to one count of violation of § 955a(a), and the government agreed to the dismissal of the conspiracy count. With the approval of the court, the parties stipulated that defendants reserved their right to appeal the “lawfulness of the Coast Guard’s seizure of” the marijuana. II. ISSUES PRESERVED FOR APPEAL On this appeal defendants pursue their contentions that the United States lacks jurisdiction to prosecute them and that the actions of the Coast Guard violated their Fourth Amendment rights. The stipulation pursuant to which the pleas of guilty were entered conditioned those pleas on defendants’ being “permitted to reserve and raise only the following issue on appeal from the judgment herein, i.e. the lawfulness of the Coast Guard’s seizure of approximately 20 tons of marijuana from the hold of the ‘Ricardo’ on June 27, 1982.” The narrowness of this stipulation creates questions as to whether defendants are entitled to pursue their jurisdictional and constitutional challenges on appeal. A. The Jurisdictional Question In its brief, the government has suggested that defendants’ challenge to" }, { "docid": "22450001", "title": "", "text": "until the vessel took on its cargo of marijuana. During the loading, Williams stood guard, preventing members of the crew from observing the loading. We think it conceivable that Williams had some property interest in the vessel, the marijuana, or both; the record does not address these points. Because the analysis of Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387, which was decided after Williams’s conviction, may leave open the possibility that the owner of a vessel or of the vessel’s cargo may have some privacy interest in the hold of the vessel, Williams’s contention that he has a privacy interest in the hold could not be disposed of without first remanding the case to permit Williams to introduce evidence concerning his relationship to the PHGH and to the marijuana. We decline to remand the case on this issue, however, because we think it clear that even if Williams could demonstrate that he had a fourth amendment interest, the search could not have violated his fourth amendment rights. The observations of Stevenson, the DEA pilot, gave the Coast Guard reason to believe that contraband had been loaded onto the PHGH near the coast of Colombia. The report that several smaller vessels had been involved in the loading, combined with the common knowledge that the usual contraband exported from Colombia is marijuana, suggested that the PHGH had been taking on relatively large quantities of marijuana, which is usually shipped in bales. The suspicious behavior of the vessel and the crew just before the Coast Guard’s boarding indicated that the vessel was probably engaged in smuggling and that contraband might still be on board. The hold was the logical place for the Coast Guard to seek contraband of the sort and quantity they suspected. We have no doubt that these facts provide grounds for at least a reasonable suspicion that the PHGH carried contraband in its hold. In our discussion of the Coast Guard’s statutory authority, we held that section 89(a) provides for searches of vessels in the complete absence of suspicion that contraband or evidence of criminal" }, { "docid": "23676230", "title": "", "text": "found the Coast Guard’s § 89(a) plenary authority to stop and board American vessels on the high seas to inspect for safety, documentation, and obvious customs and narcotics violations to be reasonable within the meaning of the fourth amendment. United States v. Williams, 617 F.2d 1063, 1075-78 (5th Cir. 1980) (en banc); United States v. Erwin, 602 F.2d 1183, 84 (5th Cir. 1979) (per curiam); United States v. Warren, 578 F.2d 1058, 1064-65 (5th Cir. 1978) (en banc). Such searches may be conducted “in the complete absence of suspicion of criminal activity.” Williams at 1075. Appellant’s next contention leads us into less certain waters. Appellant asserts that even if we assume the Coast Guard correctly stopped and boarded the “Cowboy,” Helms subsequent search of the ice hold was conducted without probable cause and is therefore violative of the fourth amendment. Our inquiry properly begins with a determination of whether the disputed search has infringed an interest of the appellant which the fourth amendment was designed to protect. Rakas v. Illinois, 439 U.S. 128, 140, 99 S.Ct. 421, 428, 58 L.Ed.2d 387 (1978). Specifically, we must decide whether or not DeWeese has a “legitimate expectation of privacy” in the ice hold of a large shrimping vessel. See Rawlings v. Kentucky, - U.S.-, 100 S.Ct. 2256, 2261, 65 L.Ed.2d 633 (1980). Our most recent en banc encounter with search and seizure at sea embraces this initial inquiry required by Rakas. United States v. Williams, 617 F.2d 1063 (5th Cir. 1980) (en banc). In Williams we held: We have concluded that “reasonable suspicion” is the appropriate fourth amendment standard by which to judge section 89(a) searches of the “private” areas-if there can be such areas-of the holds of vessels in international waters conducted for the purpose of discovering contraband or evidence of criminal activity. 617 F.2d at 1088. In Williams we assumed that the defendant had a reasonable expectation of privacy in the hold, thereby avoiding the issue of what is necessary to constitute a privacy interest in the hold of a merchant vessel. Id., at 1084-85. We cannot, and should not, avoid" }, { "docid": "4078406", "title": "", "text": "there was a minimal show of force in connection with the stopping and boarding, defendants’ constitutional challenge to the stopping and boarding was properly rejected. With that rejection, any challenge by the defendants to the lawfulness of the seizure of the marijuana must also fail, since defendants have no personal rights, see Part II.B. above, to challenge the seizure independently of the events that preceded it. United States v. Williams, supra, 589 F.2d at 214. CONCLUSION The judgments of conviction are vacated and the matter is remanded to the district court for such further proceedings as may be appropriate with respect to the question of the jurisdiction of the United States over the RICARDO. . Defendants Mayorga, Angulo-Quinones, Vargas-Rios, Barker-Michel, Nunez-Riasco, Espino-sa Sanchez, and Osorio-Alvarez each received sentences of imprisonment of four years and nine months and special parole terms of ten years. They are currently incarcerated. Defendants Cordoba-Lezcano, Castenad-Garjales, Pinto-Mejia, Vello-Garcia, and Cuevas-Viatela each received sentences of imprisonment of four years and special parole terms of five years, with six months of the sentences to be served and the remainder suspended; each of these defendants was placed on probation for five years. These defendants have served their prison terms. . Haas, a Coast Guard Academy chemistry instructor, had previously participated in a seizure of a smuggling vessel during which he had experienced the odor of a large quantity of marijuana, . The Coast Guard’s attempts to communicate with the crew of the RICARDO had been conveyed by Cadet Mary Dillman, who, among those aboard the DUANE, was apparently thought to be the most proficient in Spanish. According to the suppression hearing testimony of Haas, Dillman’s request to the RICARDO that the Coast Guard be permitted to board the RICARDO consisted of the Spanish phrase “Permisión embarque tu barco.” The defendants called as a witness a free-lance interpreter who testified that the word “embarcar” — the infinitive form of “embarque” — means to ship, not to board, and that the phrase to which Haas testified is not properly translated as requesting permission to board a ship but rather is the" }, { "docid": "15110945", "title": "", "text": "distribution of cocaine, as well as for conspiracy to possess with intent to distribute. 21 U.S.C.A. §§ 841(a)(1); 846. Hodlow and Abbott are not parties to this appeal. Meyer and McMahon filed motions to suppress. The district court, adopting the magistrate’s report, held they had “standing” to challenge the seizure of the cocaine, apparently because both were involved in the drug conspiracy and were present in the apartment with the tenant’s permission. Approving the magistrate’s finding of an illegal warrantless search of the bathroom cabinet, the court granted the motions. The Government appeals the suppression order. The Government challenges only the district court’s holding that Meyer and McMahon had standing to contest the search, and does not dispute the finding of an unlawful search. Accordingly, we assume for purposes of this decision that the search of the bathroom cabinet and seizure of the cocaine were illegal. To invoke the exclusionary rule, a defendant must establish that his own Fourth Amendment rights were violated by an unlawful search and seizure. Attempts to vicariously assert violations of the Fourth Amendment rights of others have been repeatedly rejected. See, e. g., United States v. Salvucci, 448 U.S. 83, 86, 100 S.Ct. 2547, 2550, 65 L.Ed.2d 619 (1980); Rakas v. Illinois, 439 U.S. 128, 134, 99 S.Ct. 421, 425, 58 L.Ed.2d 387 (1978); Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966, 22 L.Ed.2d 176 (1969). See also United States v. Vicknair, 610 F.2d 372, 377 (5th Cir. 1980), cert. denied, 449 U.S. 823, 101 S.Ct. 83, 66 L.Ed.2d 25 (1981); United States v. Byers, 600 F.2d 1130, 1132 (5th Cir. 1979). Whether a defendant’s Fourth Amendment rights have been violated by an unlawful search turns on his “legitimate expectation of privacy” in the area searched. Rakas v. Illinois, 439 U.S. at 143, 99 S.Ct. at 430. While an ownership or possessory interest is not necessarily required, the mere legitimate presence on the searched premises by invitation or otherwise, is insufficient in itself to create a protectable expectation. Id. at 142-43, 99 S.Ct. at 429-30. See also Vicknair, supra, 610 F.2d" }, { "docid": "22450000", "title": "", "text": "suggestion, the substantial differences between a vessel and a landlocked vehicle, see Freeman, 579 F.2d at 946, building, or person preclude any assumption that the cases defining what is reasonable on land automatically control the question of what is reasonable on the high seas. 2. The Search The panel disposed of Williams’s challenge to the Coast Guard’s search of the hold of the PHGH as follows: We hold that Williams has no legitimate expectation of privacy in the hold of a merchant vessel. The cargo of a merchant vessel is subject to inspection when it leaves a port and when it returns to a port. Certainly, no crew member could assert a privacy interest in a cargo area subject to these inspections. United States v. Williams, 589 F.2d at 214. We agree with the panel’s suggestion that a mere crew member could have no privacy interest in the hold of a cargo vessel. The record does not support the panel’s assumption that Williams was only a crewman, however. Williams was not on board the PHGH until the vessel took on its cargo of marijuana. During the loading, Williams stood guard, preventing members of the crew from observing the loading. We think it conceivable that Williams had some property interest in the vessel, the marijuana, or both; the record does not address these points. Because the analysis of Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387, which was decided after Williams’s conviction, may leave open the possibility that the owner of a vessel or of the vessel’s cargo may have some privacy interest in the hold of the vessel, Williams’s contention that he has a privacy interest in the hold could not be disposed of without first remanding the case to permit Williams to introduce evidence concerning his relationship to the PHGH and to the marijuana. We decline to remand the case on this issue, however, because we think it clear that even if Williams could demonstrate that he had a fourth amendment interest, the search could not have violated his fourth amendment rights. The observations of" }, { "docid": "22449979", "title": "", "text": "or Customs Service can seize a foreign vessel for a customs check. And, since there is no basis for assuming that the fourth amendment gives greater protection to foreign vessels than to American vessels in the context of customs seizures, a seizure of an American vessel for a customs check in the absence of reasonable suspicion of criminal activity presumably would be unconstitutional as well. In other words, the broad implication of the panel’s opinion is that section 1581 and other sources of authority, see, pp. 1081-1083, infra, providing for the seizure of vessels without suspicion of criminal activity, are unconstitutional. Since the panel’s holding calls into question other Fifth Circuit cases that have held or implied that, even in the complete absence of suspicion of criminal activity, the fourth amendment does not prohibit sei zures of vessels on the high seas, see pp. 1071-1072, supra, we find it necessary to confront directly the question of the constitutional limitations on the initial seizure of the PHGH. After approving the seizure of the PHGH, the panel declined to reach the issue of the constitutional standards governing the search of the hold of the PHGH because it found that Williams had no legitimate expectation of privacy in the hold. 589 F.2d at 214. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), which was decided after Williams’s trial, governs the determination whether Williams had a legitimate expectation of privacy. Since the District Court rejected Williams’s fourth amendment challenge perfunctorily, without determining the facts necessary for the panel or this court to apply the Rakas test, we are unable to say with certainty, as the panel did, that Williams had no cognizable fourth amendment interest in the hold. Rather than remand the case on this issue, after examining the constitutionality of the seizure we shall consider whether the Coast Guard’s search for contraband met the fourth amendment’s requirement of reasonableness. 1. The Seizure The inapplicability of the land-based law that the panel invoked in its holding is most apparent in light of the following discussion of the history of" }, { "docid": "804458", "title": "", "text": "States v. Hilton, supra, slip op. at 133. Moreover, like all ships in international waters, the JOSE GREGORIO would have been subject to a customs search upon entering the territorial waters of the United States, or of any other nation to which it may have repaired. The JOSE GREGORIO was not a pleasure vessel, but rather a commercial ship. The hold of the vessel is not a place in which personal effects would ordinarily be kept. Compare Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979) (personal luggage) with United States v. Williams, 617 F.2d 1063, 1084 (5th Cir. 1970) (ship hold) (en banc). In any event, though Hart and Egan were apparently in control of the ship, see United States v. Ochs, 595 F.2d 1247 (2d Cir.), cert. denied, 444 U.S. 955, 100 S.Ct. 435, 62 L.Ed.2d 328 (1979), there is no evidence that they either owned the boat or held any property interest in the cargo itself. The defendants also took no precautions to guard the privacy of the forward hold. When the Coast Guard boarded, the hatch from the engine room to the forward hold was jammed ajar. Prior to the boarding, the defendants had jettisoned bales of marijuana into the Atlantic, thereby rendering the contents of the hold apparent. Considering all the factors set forth in Rakas and its progeny, the defendants had no legitimate expectation of privacy in the hold of the JOSE GREGORIO. Accordingly, the search of the hold by the Coast Guard did not infringe any Fourth Amendment rights of the defendants themselves. The defendants also contend that the Salvucci decision in effect abrogates substantive rights previously enjoyed by the defendants, particularly since the Supreme Court has collapsed the issue of standing into the substantive inquiry as to whether a defendant possesses a Fourth Amendment right. Rakas v. Illinois, supra 439 U.S. at 143, 99 S.Ct. at 430. They urge that Salvucci should not be applied retroactively. I .disagree. First, the refusal to recognize automatic standing in this case does not involve a retroactive application of Salvucci, since that" }, { "docid": "4078380", "title": "", "text": "vindicate in challenging the Coast Guard’s search of the cargo hold or the seizure of the marijuana, and such a challenge would be rejected on that ground. See United States v. Salvucci, 448 U.S. 83, 99 S.Ct. 421, 58 L.Ed.2d 387 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); United States v. Streifel, 665 F.2d 414, 419 n. 6 (2d Cir.1981); United States v. Williams, 589 F.2d 210, 214 (5th Cir.1979). The government has not, however, disputed as unauthorized by the stipulation defendants’ appeal from the district court’s rulings upholding the Coast Guard’s stopping and boarding of the RICARDO. In the circumstances, we shall, on this occasion, give the parties to the stipulation the benefit of the doubt and infer that they and the court understood that defendants were to preserve their right to challenge such actions leading to the seizure as they had the right to challenge, i.e., the Coast Guard’s stopping and boarding of the RICARDO. In the future, however, we shall expect the parties to use care and precision in framing the issues to be preserved for appeal. III. JURISDICTION Defendants attack the court’s jurisdiction on two fronts. They contend that the district court’s ruling that the RICARDO was stateless had an insufficient foundation and that since the RICARDO was not shown to be stateless it was not subject to the jurisdiction of the United States within the meaning of § 955a(a). In addition they contend that even if the RICARDO was stateless, it was not subject to prosecution in United States courts because there was no showing of any nexus between the United States and the RICARDO. While we reject the latter contention, we find some merit in the first. A. Statelessness The district court cited four factors that led it to conclude that the RICARDO “at the very least, ... when seized, was a vessel ‘assimilated to a stateless vessel,’ and at best, ... was a vessel without nationality.” (9/30 Tr. at 30.) The first two factors — that when first sighted the RICARDO was flying no flag, and" }, { "docid": "8440110", "title": "", "text": "not then proceeding toward the United States. On February 19, 1988, some 48 hours after the previous off-loading operation by the undercover vessel, the Mallow closed within visual distance of the Christina M. Lt. Commander Christian Bohner (“Bohner”), Commanding Officer of the Mallow, identified the Mallow as a U.S. Coast Guard vessel and requested permission to board the Christina M. Defendant Roosevelt Augustus Rodney (“Rodney”), Captain of Christina M, initially refused Bohner’s request. Bohner than indicated to Rodney that the Coast Guard had permission of the Panamanian authorities to board and search the Christina M and that he, Bohner, had “other means” to stop the Christina M. Rodney relented and the Christina M made no effort to flee. Shortly thereafter, without a search or arrest warrant or any efforts to secure same, the Coast Guard personnel from Mallow boarded the Christina M for the express purpose of searching the freighter for marihuana. A strong odor of marihuana was immediately apparent to all members of the boarding party. They found in excess of 21,000 pounds of marihuana in the aft hold. Although no other cargo was found, other than the bales of marihuana, documents and other personal effects were found and seized from the living quarters assigned to the crew. Rodney and his crew of seven (7) men were arrested. The Mallow possessed radio equipment capable of communicating with a magistrate in Hawaii or the mainland. The court will discuss the areas of dispute in the following sequence: I. Applicability of the fourth amendment to searches and seizures of a foreign vessel on the high seas. II. Standing to challenge the constitutionality of the search (“Standing”). III. Probable cause to search. A. Statutory authority given to the Coast Guard. 1. Limitation on statutes. B. Warrant requirement. C. Exigent circumstances on the high seas. D. Consent by the flag nation. DISCUSSION I. APPLICABILITY OF THE FOURTH AMENDMENT Before any analysis of standing can be undertaken under U.S. v. Rakas, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), a determination must be made as to whether the fourth amendment applies to" }, { "docid": "23344048", "title": "", "text": "compartmentalized.” Further, the judge cautioned the jury, both at the time the evidence was introduced and in his instructions, that it could be considered only against the three defendants. The district court did not abuse its discretion in this regard. VL Finally, Sampayo-Vega and Thomas-Escobar insist that the marijuana was seized in an illegal search and therefore testimony concerning it was improperly introduced. The leading case on the Coast Guard’s authority to stop, board, and search a foreign flag vessel on the high seas is United States v. Williams, 617 F.2d 1063 (5th Cir. 1980) (in banc). There, the court interpreted 14 U.S.C. § 89(a) (1982), the statute authorizing such actions, as requiring that the Coast Guard “have at least a reasonable suspicion that a vessel is subject to the operation of this country’s laws before seizing the vessel.” Id. at 1076; see also United States v. Marsh, 747 F.2d 7, 10 (1st Cir.1984). It relied on the ‘reasonable ground for suspicion’ exception to the principle of noninterference on the high seas. Art. 22, Convention on the High Seas, opened for signature April 29, 1958, 13 U.S.T. 2312, T.I.A.S. No. 5200 (entered into force Sept. 30, 1962). Williams concluded, and we agree, that a reasonable suspicion requirement for searches and seizures on the high seas survives Fourth Amendment scrutiny. See United States v. Demanett, 629 F.2d 862, 868 (3d Cir.1980) (where Coast Guard had reasonable and articulate cause to board ship for documentation verification inspection, Fourth Amendment requirements were satisfied), cert. denied, 450 U.S. 910, 101 S.Ct. 1347, 67 L.Ed.2d 333 (1981). Further, the standard is surely met in this case. Lt. Hammond’s observations, recited earlier, reasonably indicated that the Ida II was smuggling contraband and that a violation of United States law was occurring. In addition, as the district court found, Captain Wright-Barker as well as the Panamanian government gave complete consent to the search. And a crew member such as Sampayo-Vega or Thomas-Escobar has no expectation of privacy in a ship’s cargo hold, and therefore no right to challenge the legality of the search in that area. United" }, { "docid": "22450061", "title": "", "text": "hold of a merchant vessel. The cargo of a merchant vessel is subject to inspection when it leaves a port and when it returns to a port. Certainly, no crew member could assert a privacy interest in a cargo area subject to these inspections. In the instant case, we are not dealing with a search of a living quarters but rather with a search of an area that is let for public hire. It is therefore plain to us that under the analysis approved by the Supreme Court in Rakas [v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1979)], as a matter of substantive fourth amendment law, the search of the vessel’s hold did not violate any of Williams’ rights. United States v. Williams, 589 F.2d 210, 214 (5th Cir. 1979); see Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1979); United States v. Vicknair, 610 F.2d 372, 379-81 (5th Cir. 1980). . United States v. Baker, 609 F.2d 134, 140 (5th Cir. 1980); United States v. Warren, 578 F.2d 1058, 1065 (5th Cir. 1978) (en banc); United States v. Odom, 526 F.2d 339, 342 (5th Cir. 1976). . I would find Panama’s consent sufficient because Panama is not a signatory of the Convention on the High Seas. Thus, any violation of the terms of that Convention here was a violation of international law and not of a treaty. It is a general principle of international law that “consent or acquiescence by the offended state waives any right it possessed, and heals any violation of international law.” United States v. Gengler, 510 F.2d 62, 67 (2d Cir.), cert. denied, 421 U.S. 1001, 95 S.Ct. 2400, 44 L.Ed.2d 668 (1975). Cf. Cook v. United States, 288 U.S. 102, 53 S.Ct. 305, 77 L.Ed. 641 (1933) (where a seizure violates a treaty that is self-executing, government has no power to subject vessel or defendants on board to its laws); Ford v. United States, 273 U.S. 593, 47 S.Ct. 531, 71 L.Ed. 793 (1927) (same). . Respectfully, I also differ with the majority analysis of international" }, { "docid": "22899771", "title": "", "text": "Islands. Under these facts, our own precedent compels that the attacks on the boarding, search and seizure of the Nirvana be repelled. A. Fourth Amendment and Statutory Attacks Since the fourth amendment and statutory claims are closely related, we consider them together. The first question is standing. The government urges that defendants have no standing because under Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), they had no legitimate expectation of privacy in the area searched nor an interest in the property seized. It is true that defendants have asserted “that they played no part as owners of the boat or the marijuana, or as financiers, or managers of the importation scheme.” App. Brief at 2. But they were the only ones aboard the Nirvana at the time of the seizure. They had charge of her day-to-day operations and she was their temporary home. In United States v. Lochan, 674 F.2d 960 (1st Cir.1982), we analyzed Rakas in detail and the cases leading to it and flowing from it. We concluded that some of the factors relevant to a privacy expectation are “legitimate presence in the area searched, possession or ownership of the area searched or the property seized, prior use of the area searched or the property seized, ability to control or exclude others’ use of the property, and a subjective expectation of privacy.” United States v. Lochan, 674 F.2d at 965. Both the defendants’ claim that they were innocent dupes and the government’s argument that they had no standing to assert a fourth amendment defense sink under the heavy weight of the facts. The defendants had a right of privacy in the Nirvana to the extent afforded any crew member of a small sailing vessel on the high seas. We have held that this is a lesser expectation of privacy than people have in their homes and obviates the usual fourth amendment requirement of a search warrant. United States v. Green, 671 F.2d 46, 53 (1st Cir.1982). The statute under which the Coast Guard boarded the Nirvana, 14 U.S.C. § 89(a), is no" }, { "docid": "4078379", "title": "", "text": "the trial court, which is defined and limited by statute, is not exceeded, Louisville & Nashville Railroad Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 53 L.Ed. 126 (1908), and since the stipulation is construed infra to preserve issues of fact and law arising from the stopping and boarding of the RICARDO as well as the seizure of marijuana, we will entertain on appeal defendants’ challenge to the court’s jurisdiction. B. The Constitutional Issues Notwithstanding the stipulation’s preservation of the right to appeal “only” the lawfulness of the Coast Guard’s “seizure” of the marijuana from the hold of the RICARDO, defendants have proceeded to challenge the lawfulness not only of the seizure itself but also of the Coast Guard’s stopping and boarding of the vessel. The government properly notes that the defendants have no Fourth Amendment right to challenge only the seizure. As crew members of the RICARDO having no proprietary interest in the vessel’s cargo and having no legitimate expectation of privacy in its cargo hold, defendants have no personal rights to vindicate in challenging the Coast Guard’s search of the cargo hold or the seizure of the marijuana, and such a challenge would be rejected on that ground. See United States v. Salvucci, 448 U.S. 83, 99 S.Ct. 421, 58 L.Ed.2d 387 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); United States v. Streifel, 665 F.2d 414, 419 n. 6 (2d Cir.1981); United States v. Williams, 589 F.2d 210, 214 (5th Cir.1979). The government has not, however, disputed as unauthorized by the stipulation defendants’ appeal from the district court’s rulings upholding the Coast Guard’s stopping and boarding of the RICARDO. In the circumstances, we shall, on this occasion, give the parties to the stipulation the benefit of the doubt and infer that they and the court understood that defendants were to preserve their right to challenge such actions leading to the seizure as they had the right to challenge, i.e., the Coast Guard’s stopping and boarding of the RICARDO. In the future, however, we shall expect the parties to use" }, { "docid": "4078401", "title": "", "text": "activity that threatens the state’s security or governmental functions), 34 (vessel engaged in a universally prohibited activity, such as piracy) (1965). See United States v. Marino-Garcia, supra, 679 F.2d at 1380-82. But we find no authority in international law for requiring any nexus where the ship otherwise would be subject to the jurisdiction of no state. We conclude, therefore, that international law provides no bar to an assertion of jurisdiction over a stateless vessel by the United States pursuant to § 955a(a), even absent proof that the vessel’s operators intended to distribute their cargo in the United States. Accord, United States v. Marino-Garcia, supra, 679 F.2d at 1383; United States v. Howard-Arias, supra, 679 F.2d at 372. Consequently, we conclude that a properly supported finding by the district court that the RICARDO was stateless would, in itself, be sufficient to establish the court’s jurisdiction over the defendants. ' IV. CONSTITUTIONALITY OF THE STOP AND BOARDING The district court rejected defendants’ constitutional challenges to the Coast Guard’s stopping and boarding of the RICARDO principally on the ground that these actions were appropriate in light of the Coast Guard’s reasonable suspicion that the vessel was engaged in illegal activity. We see no basis for overturning this ruling. Since the district court found, implicitly if not explicitly, that the Coast Guard’s stopping and boarding of the RICARDO did not amount to an arrest of the defendants, probable cause for the Coast Guard’s action was not required. See United States v. Streifel, 665 F.2d 414, 421 (2d Cir.1981). Rather, since the stopping and boarding constituted an investigatory stop, those actions were lawful if the Coast Guardsmen were “ ‘aware of specific articulable facts, together with rational inferences from those facts that reasonably warranted] suspicion’ that the individual .. . was, or [was] about to be engaged in criminal activity.” Id. (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 2581, 45 L.Ed.2d 607 (1975)). To determine whether an officer’s suspicion was reasonable, the “totality of the circumstances” must be considered, United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690," }, { "docid": "804453", "title": "", "text": "two of the bales. Furthermore, Ensign McCann testified that as soon as he stepped aboard the JOSE GREGORIO he perceived a strong scent of marijuana. As a result, even assuming that the arrests and searches of the defendants were illegal, the discovery of the marijuana was not the fruit of any such illegality, but resulted from prior circumstances. See Rawlings v. Kentucky, - U.S. - ,-- - --, 100 S.Ct. 2556, 2562-64, 65 L.Ed.2d 633 (1980); Dunaway v. New York, 442 U.S. 200, 218, 99 S.Ct. 2248, 2259, 60 L.Ed.2d 824 (1979). The defendants argue that JOSE GREGORIO was seized on the afternoon of March 21, 1980, upon the arrival of the VIGOROUS and that the seizure resulted in an arrest of their persons. I disagree. Even assuming that a seizure of the JOSE GREGORIO occurred on March 21, that seizure did not constitute an arrest of the defendants. The Coast Guard officers did not restrain them physically, curtail their liberty aboard the JOSE GREGORIO, or conduct a search of their persons. No arrest of the defendants occurred on March 21. The Supreme Court has repeatedly emphasized that “a court may not exclude evidence under the Fourth Amendment unless it finds that an unlawful search or seizure violated the defendant’s own constitutional rights.” United States v. Payner, -U.S.-,-, 100 S.Ct. 2439, 2442, 65 L.Ed.2d 468 (1980). See Rakas v. Illinois, 439 U.S. 128, 133-140, 99 S.Ct. 421, 425-429, 58 L.Ed.2d 387 (1978). The Court in United States v. Payner, supra 100 S.Ct. at 2442, stated that the defendant’s Fourth Amendment rights are violated only when the challenged conduct invaded his legitimate expectation of privacy rather than that of a third party. In United States v. Salvucci, - U.S. -, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), the Supreme Court abandoned the rule of automatic standing, which permitted a defendant charged with a possessory offense to challenge the legality of a search without claiming possession of evidence illegally seized. In order to determine whether a defendant has standing, a court must assess not merely whether the defendant had a possessory interest" }, { "docid": "8440111", "title": "", "text": "marihuana in the aft hold. Although no other cargo was found, other than the bales of marihuana, documents and other personal effects were found and seized from the living quarters assigned to the crew. Rodney and his crew of seven (7) men were arrested. The Mallow possessed radio equipment capable of communicating with a magistrate in Hawaii or the mainland. The court will discuss the areas of dispute in the following sequence: I. Applicability of the fourth amendment to searches and seizures of a foreign vessel on the high seas. II. Standing to challenge the constitutionality of the search (“Standing”). III. Probable cause to search. A. Statutory authority given to the Coast Guard. 1. Limitation on statutes. B. Warrant requirement. C. Exigent circumstances on the high seas. D. Consent by the flag nation. DISCUSSION I. APPLICABILITY OF THE FOURTH AMENDMENT Before any analysis of standing can be undertaken under U.S. v. Rakas, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), a determination must be made as to whether the fourth amendment applies to seizures and searches of foreign vessels on the high seas. Thereafter, the inquiry becomes whether the claimant is legally entitled to claim an infringement of that constitutional right. The Fifth Circuit in U.S. v. Cadena, 585 F.2d 1252, 1262 (5th Cir.1978), noted that “Once we subject foreign vessels or aliens to criminal prosecution, they are entitled to the protection of all our laws, including the Fourth Amendment.” The Ninth Circuit, in U.S. v. Peterson, 812 F.2d 486, 489, 494 (1987) assumed that the fourth amendment applies to the search of ships or crew on the high seas. This assumption is shared by the government and adopted by this court. II. STANDING We now delve into the concept of standing required to challenge the search as we apply the Rakas standard to the defendants’ legitimate expectations of privacy. Defendants bear the burden of proof in establishing this privacy expectation. US. v. Sarda-Villa, 760 F.2d 1232, 1235 (11th Cir.1985). The privacy interest to support standing is an interest in the place searched, not an interest in the" }, { "docid": "22449980", "title": "", "text": "declined to reach the issue of the constitutional standards governing the search of the hold of the PHGH because it found that Williams had no legitimate expectation of privacy in the hold. 589 F.2d at 214. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), which was decided after Williams’s trial, governs the determination whether Williams had a legitimate expectation of privacy. Since the District Court rejected Williams’s fourth amendment challenge perfunctorily, without determining the facts necessary for the panel or this court to apply the Rakas test, we are unable to say with certainty, as the panel did, that Williams had no cognizable fourth amendment interest in the hold. Rather than remand the case on this issue, after examining the constitutionality of the seizure we shall consider whether the Coast Guard’s search for contraband met the fourth amendment’s requirement of reasonableness. 1. The Seizure The inapplicability of the land-based law that the panel invoked in its holding is most apparent in light of the following discussion of the history of the laws governing the seizure of nautical vessels. The historical inquiry also lays the basis for our assessment of the “reasonableness” of the Coast Guard’s seizure of the PHGH. This country’s first customs statute, Act of July 31,1789, c. 5,1 Stat. 29, was enacted by the same Congress that, on September 23, 1789, proposed the Bill of Rights, including the fourth amendment, to the states for adoption, 1 Stat. 97. In United States v. Ramsey, the Supreme Court noted the significance of this historical background: Section 24 [of the Act of July 31, 1789] granted customs officials “full power and authority” to enter and search “any ship or vessel, in which they shall have reason to suspect any goods, wares or merchandise subject to duty shall be concealed . .” This acknowledgement of plenary customs power was differentiated from the more limited power to enter and search “any particular dwelling-house, store, building, or other place where a warrant upon “cause to suspect” was required. The historical importance of the enactment of this customs statute by" }, { "docid": "4078378", "title": "", "text": "the jurisdiction of the United States to prosecute them is improper because it is beyond the issue of “seizure” preserved by the stipulation. We reject the government’s suggestion. A question as to the court’s jurisdiction to try a defendant may be raised at any time during the pendency of the proceedings. See Fed.R.Crim.P. 12(b). Accordingly, in ruling in particular cases that a defendant who has pleaded guilty has waived his right to appeal or that his conditional plea has preserved only the specifically mentioned issues and waived all others, we have taken care to specify that the waiver applies only to defects that are “non-jurisdictional.” E.g., United States v. Doyle, 348 F.2d 715, 718-19 (2d Cir.) (quoting United States v. Spada, 331 F.2d 995, 996 (2d Cir.), cert. denied, 379 U.S. 865, 85 S.Ct. 130, 13 L.Ed.2d 67 (1964)), cert. denied, 382 U.S. 843, 86 S.Ct. 89, 15 L.Ed.2d 84 (1965). Since it is a responsibility of the appellate court no less than of the trial court to see to it that the jurisdiction of the trial court, which is defined and limited by statute, is not exceeded, Louisville & Nashville Railroad Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 53 L.Ed. 126 (1908), and since the stipulation is construed infra to preserve issues of fact and law arising from the stopping and boarding of the RICARDO as well as the seizure of marijuana, we will entertain on appeal defendants’ challenge to the court’s jurisdiction. B. The Constitutional Issues Notwithstanding the stipulation’s preservation of the right to appeal “only” the lawfulness of the Coast Guard’s “seizure” of the marijuana from the hold of the RICARDO, defendants have proceeded to challenge the lawfulness not only of the seizure itself but also of the Coast Guard’s stopping and boarding of the vessel. The government properly notes that the defendants have no Fourth Amendment right to challenge only the seizure. As crew members of the RICARDO having no proprietary interest in the vessel’s cargo and having no legitimate expectation of privacy in its cargo hold, defendants have no personal rights to" } ]

[ { "docid": "22046066", "title": "", "text": "in compromise is a yielding of absolutes and an abandoning of highest hopes.” Milstein v. Werner, 57 F.R.D. 515, 524-25 (S.D.N.Y. 1972). In performing this balancing task, the trial court is entitled to rely upon the judgment of experienced counsel for the parties. Flinn v. FMC Corporation, 528 F.2d 1169 (4th Cir. 1975). Indeed, the trial judge, absent fraud, collusion, or the like, should be hesitant to substitute its own judgment for that of counsel. Id. at 1173. In addition to examining the merits of a proposed settlement and ascertaining the views of counsel, the Court should consider other factors. Practical considerations may be taken into account. It is often said that litigants should be encouraged to determine their respective rights between themselves. United States v. Allegheny-Ludlum Industries, Inc., 517 F.2d 826 (5th Cir. 1975) (and cases cited therein). Particularly in class action suits, there is an overriding public interest in favor of settlement. Id.; Van Bronkhorst v. Safeco Corp., 529 F.2d 943, 950 (9th Cir. 1976). It is common knowledge that class action suits have a well deserved reputation as being most complex. The requirement that counsel for the class be experienced attests to the complexity of the class action. Eisen v. Carlisle and Jacquelin, 391 F.2d 555 (2d Cir. 1968). A review of the leading cases from this Circuit involving litigation of employment discrimination in class actions profitably shows the length of time and expense which must be incurred before the dust of combat has finally settled. See, e. g., United States v. United States Steel Corporation, 520 F.2d 1043 (5th Cir. 1975); Pettway v. American Cast Iron Pipe Company, 494 F.2d 211 (5th Cir. 1974). In these days of increasing congestion within the federal court system, settlements contribute greatly to the efficient utilization of our scarce judicial resources. In a Title VII case, as here, the policy favoring settlement is even stronger in view of the emphasis placed upon voluntary conciliation by the Act itself. United States v. Allegheny-Ludlum Industries, Inc., supra; Patterson v. Newspaper & Mail Del. U. of N. Y. & Vic., 514 F.2d 767" } ]

[ { "docid": "18286348", "title": "", "text": "duration of litigation; and (6) the substance and amount of opposition to the settlement. Id. The burden of proving the fairness of the settlement is on the proponents. In re General Motors Corp. Engine Interchange Litig., 594 F.2d 1106, 1126 (7th Cir.1979). The Court should take into account not only the presentations of counsel, but also other sources, “including the comments of class representatives and class members, the judge’s own knowledge of the case obtained during pretrial proceedings, and information provided by persons who in unusual cases may be appointed by the court as special masters ... to assess the settlement.” Manual for Complex Litigation § 30.42 (2d ed. 1985). In determining wheth er to approve a proposed settlement, the Court is entitled to rely upon the judgment of the parties’ experienced counsel. “[T]he trial judge, absent fraud, collusion, or the like, should be hesitant to substitute its own judgment for that of counsel.” Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir.1977) (citing Flinn v. FMC Corp., 528 F.2d 1169, 1173 (4th Cir.1975)); Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1214 (5th Cir.1978), cert. denied, 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979). It is essential that the Court not examine the settlement as if defendants had been found liable for violation of the antitrust laws. See, e.g., City of Detroit v. Grinnell Corp., 495 F.2d 448, 455-56 (2d Cir.1974) (“It cannot be overemphasized that neither the trial court in approving the settlement nor this Court in reviewing that approval have the right or the duty to reach any ultimate conclusions on the issues of fact and law which underline the merits of the dispute”); Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir.1977) (“ ‘[Inherent in compromise is a yielding of absolutes and an abandoning of highest hopes’ ”) (quoting Milstein v. Werner, 57 F.R.D. 515, 524-25 (S.D.N.Y.1972)). Finally the Court may only approve or disapprove the settlements as presented; the Court is not free to impose any modifications on the parties. Manual for Complex Litigation § 30.41. IV. ANALYSIS OF THE SETTLEMENT" }, { "docid": "20450217", "title": "", "text": "duration of further litigation; (3) the risk of maintaining class action status throughout the trial; (4) the amount offered in settlement; (5) the extent of discovery completed; (6) the stage of the proceedings; (7) the views and experience of counsel; (8) any opposition by class members; (9) the presence of a governmental participant. Linney v. Cellular Alaska Pshp., 151 F.3d 1234, 1242 (9th Cir.1998). This list of factors is not exclusive and the court may balance and weigh different factors depending on the circumstances of each case. Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370, 1376 (9th Cir.1993). 1. Strength of Plaintiffs’ Case. “An important consideration in judging the reasonableness of a settlement is the strength of the plaintiffs’ case on the merits balanced against the amount offered in the settlement.” Nat’l Rural Telecom. Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 528 (C.D.Cal.2004) (quoting 5 Moore’s Federal Practice § 23.85[2][b] (Matthew Bender 3d. ed.)). However, in balancing these factors, “a proposed settlement is not to be judged against a speculative measure of what might have been awarded in a judgment in favor of the class.” Id. [T]he settlement or fairness hearing is not to be turned into a trial or rehearsal for trial on the merits. Neither the trial court nor [the Court of Appeals] is to reach any ultimate conclusions on the contested issues of fact and law which underlie the merits of the dispute, for it is the very uncertainty of outcome in litigation and avoidance of wastefulness and expensive litigation that induce consensual settlements. Officers for Justice v. Civil Serv. Comm’n, 688 F.2d 615, 625 (9th Cir.1982). Although Plaintiffs maintain their strong belief in the underlying merits of their case, Plaintiffs’ counsel acknowledges that wage and hour eases on behalf of low wage workers can difficult to prove on a class basis and considered the uncertainties surrounding proving their claims in a lengthy and complex jury trial. This factor weighs in favor of approval. 2. Risk, Expense, Complexity, and Likely Duration óf Further Litigation. Another relevant factor is the risk of continued litigation balanced against the" }, { "docid": "419363", "title": "", "text": "made informed decisions, which lead to resolution of the matter with the assistance of a mediator. Consequently, this factor supports preliminary approval of the Settlement. F. Experience and Views of Counsel As addressed above, Plaintiffs counsel are experienced in class action litigation. The Class Counsel “believe[] the instant settlement is in the best interests of the Class Members.” (Doc. 43 at 24.) Further, Defendant “determined that it is desirable and beneficial to it that the Action be settled in the manner and upon the terms and conditions set forth in [the Settlement].” (Doc. 26 at 25, Settlement ¶ 24.) These recommendations of counsel are entitled to significant weight and support approval of the settlement agreement. See Nat’l Rural Tele-comms., 221 F.R.D. at 528 (“Great weight is accorded to the recommendation of counsel, who are most closely acquainted with the facts of the underlying litigation”). G. Reaction of Class Members to Settlement Significantly, no objections were filed by Class Members following service of the Class Notice Packet. In addition, Plaintiff agreed to the terms of the Settlement, and did not have any objections to the terms. (See Doc. 26 at 46.) “[T]he absence of a large number of objections to a proposed class action settlement raises a strong presumption that the terms of a proposed class action settlement are favorable to the class members.” Nat’l Rural Telecomms., 221 F.R.D. at 529. Therefore, this factor weighs in favor of the Settlement. H. Collusion between Negotiating Parties The inquiry of collusion addresses the possibility that the settlement agreement is the result of either “overt misconduct by the negotiators” or improper incentives of class members at the expense of others. Staton, 327 F.3d at 960. The parties utilized an impartial mediator, and settlement negotiations took several weeks to complete. (See Doc. 35 at 11-12; Doc. 43 at 25.) Given the duration of the negotiations, it appears the agreement is the product of non-collusive conduct. IV. Conclusion The factors set forth by the Ninth Circuit weigh in favor of final approval of the Settlement, which appears to be is fair, reasonable, and adequate as required" }, { "docid": "21798163", "title": "", "text": "litigate this case if it did not settle. ECF No. 143 at 4-11 (arguing that Counts II and III in the second amended complaint have no merit; that Defendants would appeal any judgment based on the legal conclusions in the Court’s order denying judgment on the pleadings on Count I; and that full relief on Count I would likely be limited, at most, to 7.5 months of benefit payments).- Although there appears to be little risk that the class could not be maintained throughout the trial of this matter, the risks of pursuing the case through to a litigated conclusion are high. In addition, any relief to the class would be significantly delayed, putting the likelihood of actual recovery in more doubt. See ECF No. 132 at 19 (“Class Counsel also took into account the financial position of the Fund in determining that a settlement in the near term might be more beneficial to the Class than holding out for a judgment after trial and appeals that could extend out for many years.”). Accordingly, these factors weigh in favor of approving the settlement. 2. Settlement Amount “In assessing the consideration obtained by the class members in a class action settlement, ‘it- is the complete package taken as a whole, rather than the individual component parts, that must be examined for overall fairness.’ ” Nat’l Rural Telecomms. Cooperative v. DIRECTV, Inc., 221 F.R.D. 523, 527 (C.D. Cal. 2004) (quoting Officers for Justice, 688 F.2d at 628). “In this regard, it is well-settled law that a proposed settlement may be acceptable even though it amounts to only a fraction of the potential recovery that might be available to the class members at trial.” Id. (citing Linney v. Cellular Alaska F’ship, 151 F.3d 1234, 1242 (9th Cir. 1998)). In this case, class members are scheduled to receive 37% of the pension benefits they should have received during the four-year Payment Period had the 2012 Amendment not gone into effect, less a pro rata share of attorneys’ fees and expenses. The Court previously calculated the expected percentage recovery as being closer' to 25% after" }, { "docid": "14248389", "title": "", "text": "23(e) involves a two-step process in which the Court first determines whether a proposed class action settlement deserves preliminary approval and then, after notice is given to class members, whether final approval is warranted.” Nat’l Rural Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 525 (C.D.Cal.2004). At the final approval stage, the primary inquiry is whether the proposed settlement “is fundamentally fair, adequate, and reasonable.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir.1998). Having already completed an preliminary examination of the agreement, the court reviews it again, mindful that the law favors the compromise and settlement of class action suits. See, e.g., Churchill Village, LLC. v. Gen. Elec., 361 F.3d 566, 576 (9th Cir.2004); Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir.1992); Officers for Justice v. Civil Serv. Comm’n, 688 F.2d 615, 625 (9th Cir.1982). Ultimately, “the decision to approve or reject a settlement is committed to the sound discretion of the trial judge because he is exposed to the litigants and their strategies, positions, and proof.” Hanlon, 150 F.3d at 1026. An objector to a proposed settlement agreement bears the burden oí proving any assertions they raise challenging the reasonableness of a class action settlement. United States v. State of Oregon, 913 F.2d 576, 581 (9th Cir.1990). The court iterates that the proper standard for approval of the proposed settlement is whether it is fair, reasonable, adequate, and free from collusion — not whether the class members could have received a better deal in exchange for the release of their claims. See Hanlon, 150 F.3d at 1027 (“Settlement is the offspring of compromise; the question we address is not whether the final product could be prettier, smarter or snazzier, but whether it is fair, adequate and free from collusion.”). III. DISCUSSION A. Class Certification The Federal Rules of Civil Procedure describe four preliminary requirements for class certification: (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. See Fed.R.Civ.P. 23(a)(1)-(4). If these are satisfied, the court must then examine whether the requirements of Rule 23(b)(1), (b)(2), or (b)(3) are satisfied. Wal-Mart Stores," }, { "docid": "1403566", "title": "", "text": "reactions of the members of a class to a proposed settlement is a proper consideration for the trial court.” 5 Moore’s Federal Practice, § 23.85[2][d] (Matthew Bender 3d ed.). In this regard, “[t]he representatives’ views may be important in shaping the agreement and will usually be presented at the fairness hearing; they may be entitled to special weight because the representatives may have a better understanding of the case than most members of the class.” Manual for Complex Litigation, Third, § 30.44 (1995). On November 7, 2003, the Court entered an Amended Order Granting Preliminary Approval of Class Action Settlement and Approving the Proposed Notice of Class Action Settlement (the “Preliminary Approval Order”). In the Preliminary Approval Order, the Court preliminarily approved the Proposed Settlement, approved (with certain modifications) the proposed Notice, and scheduled a Final Approval Hearing for January 5, 2004. The Court also made the following order with respect to the manner in which Class Members could object to the Proposed Settlement: Any Class Member may appear and show cause (if it has any) why the Proposed Settlement should or should not be approved as fair, just, reasonable, and adequate. However, no Class Member shall be heard or entitled to contest final approval of the Proposed Settlement unless that Class Member has filed with the District Court, no later than December 10, 2003, written objections to the Proposed Settlement and all papers and briefs supporting such written objections ... See Preliminary Approval Order, at 3. The Notice, which was served on each Class Member on November 12, 2003, prominently advised the Class Members of the Court’s requirements regarding objections in the body of the Notice itself. See Notice at 56-58. A copy of the Preliminary Approval Order itself was also attached as Exhibit F to the Notice. No objections to the Proposed Settlement have been filed with the Court or served on counsel. The absence of a single objection to the Proposed Settlement provides further support for final approval of the Proposed Settlement. It is established that the absence of a large number of objections to a proposed" }, { "docid": "14248388", "title": "", "text": "focusing on low income consumer law issues. See Dkt. No. 130 at 9. viii. Release of Claims Class Members release all claims and causes of action that are asserted in the Action or could have been asserted based on the allegations in the Action. See id. at 10. ix. Opting Out and Objectors Few Class members requested exclusion (97 out of more than 1,188,000 Class members — 0.0082% of the Class), and only 3 pro se (0.00025% of the Class) filed objections. See Dkt. No. 140 at 3-4. They are Burgess, Pailes, and Narkin. See Dkt. Nos. 135, 136, 138. Ms. Narkin was not timely, nor is she a class member. II. LEGAL STANDARD A class action may not be settled without court approval. Fed.R.Civ.P. 23(e). When the parties to a putative class action reach a settlement agreement prior to class certification, “courts must peruse the pro posed compromise to ratify both the propriety of the certification and the fairness of the settlement.” Staton v. Boeing Co., 327 F.3d 938, 952 (9th Cir.2003). “Approval under 23(e) involves a two-step process in which the Court first determines whether a proposed class action settlement deserves preliminary approval and then, after notice is given to class members, whether final approval is warranted.” Nat’l Rural Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 525 (C.D.Cal.2004). At the final approval stage, the primary inquiry is whether the proposed settlement “is fundamentally fair, adequate, and reasonable.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir.1998). Having already completed an preliminary examination of the agreement, the court reviews it again, mindful that the law favors the compromise and settlement of class action suits. See, e.g., Churchill Village, LLC. v. Gen. Elec., 361 F.3d 566, 576 (9th Cir.2004); Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir.1992); Officers for Justice v. Civil Serv. Comm’n, 688 F.2d 615, 625 (9th Cir.1982). Ultimately, “the decision to approve or reject a settlement is committed to the sound discretion of the trial judge because he is exposed to the litigants and their strategies, positions, and proof.” Hanlon, 150" }, { "docid": "17851130", "title": "", "text": "the proposed settlement. Staton v. Boeing Co., 327 F.3d 938, 959 (9th Cir.2003). The Court need only consider some of these factors — namely, those designed to protect absentees. See Molski v. Gleich, 318 F.3d 937, 954 (9th Cir.2003) (overruled in part on other grounds). Judicial policy favors settlement in class actions and other complex litigation where substantial resources can be conserved by avoiding the time, cost, and rigors of formal litigation. In re Wash. Pub. Power Supply Sys. Sec. Litig., 720 F.Supp. 1379, 1387 (D.Ariz.1989). b) Analysis (1) The strength of the case, and risk, expense, complexity and likely duration of further litigation To determine whether the proposed settlement is fair, reasonable, and adequate, the Court must balance against the continuing risks of litigation (including the strengths and weaknesses of the Plaintiffs case) the benefits afforded to members of the Class, and the immediacy and certainty of a substantial recovery. See In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 458 (9th Cir.2000). In other words, [t]he Court shall consider the vagaries of litigation and compare the significance of immediate recovery by way of the compromise to the mere possibility of relief in the future, after protracted and expensive litigation. In this respect, “It has been held proper to take the bird in hand instead of a prospective flock in the bush.” Nat’l Rural Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 526 (C.D.Cal.2004) (citations omitted). Regarding the strength of the case, Plaintiff claims that “Class Counsel believe strongly in the merits of .the claims brought on behalf of the Class.” Doc. No. 82-1 at 25. However, Defendant claims to have various meritorious defenses, including its denial that it violated the TCPA, and that this Action would be amenable to class certification (both because of the presence of arbitration clauses in cardholder agreements for many Class Members, and because some courts in this District have denied motions for class certification in TCPA cases). (2) The Risk of Maintaining Class Action Status Throughout the Trial Pursuant to Rule 23, the Court may revisit a prior order granting certification of" }, { "docid": "1403565", "title": "", "text": "the litigation.” Pacific Enters. Sec. Litig., 47 F.3d at 378. Thus, “the trial judge, absent fraud, collusion, or the like, should be hesitant to substitute its own judgment for that of counsel.” Cotton v. Hinton, 559 F.2d 1326,1330 (5th Cir.1977); Hanrahan v. Britt, 174 F.R.D. 356, 366-368 (E.D.Pa.1997) (presumption of correctness applies to a class action settlement reached in arms’-length negotiations between experienced, capable counsel after meaningful discovery, citing Manual for Complex Litigation, Second § 30.41 (1985) and Ratner v. Bennett, No. 92-4701, 1996 WL 243645, *5 (E.D.Pa. May 8,1996)). Class Counsel have demonstrated a high degree of competence in the litigation of this case. Counsel together with the Class Representatives strongly believe that the Proposed Settlement is a fair, adequate, and reasonable resolution of the Class’ dispute with DIRECTV and is preferable to continued litigation. G. The Presence of a Governmental Participant There is no governmental participant in this Class Action. As a result, this factor does not apply to the Court’s analysis. H. Reaction of the Class Members to the Proposed Settlement “The reactions of the members of a class to a proposed settlement is a proper consideration for the trial court.” 5 Moore’s Federal Practice, § 23.85[2][d] (Matthew Bender 3d ed.). In this regard, “[t]he representatives’ views may be important in shaping the agreement and will usually be presented at the fairness hearing; they may be entitled to special weight because the representatives may have a better understanding of the case than most members of the class.” Manual for Complex Litigation, Third, § 30.44 (1995). On November 7, 2003, the Court entered an Amended Order Granting Preliminary Approval of Class Action Settlement and Approving the Proposed Notice of Class Action Settlement (the “Preliminary Approval Order”). In the Preliminary Approval Order, the Court preliminarily approved the Proposed Settlement, approved (with certain modifications) the proposed Notice, and scheduled a Final Approval Hearing for January 5, 2004. The Court also made the following order with respect to the manner in which Class Members could object to the Proposed Settlement: Any Class Member may appear and show cause (if it has" }, { "docid": "20450223", "title": "", "text": "representatives’ opinions of the settlement are especially important because “[t]he representatives’ views may be important in shaping the agreement and will usually be presented at the fairness hearing; they may be entitled to special weight because the representatives may have a better understanding of the case than most members of the class.” Id. (citing Manual for Complex Litigation, Third, § 30.44 (1995)). The Class Representatives, who have an extensive understanding of the merits of the case and the Settlement, se e Vasquez Decl., Doc. 63 at ¶¶ 7-17; Ruiz Decl., Doc. 64 at ¶¶ 7-17, are strongly in support of the Settlement, Mallison Decl., Doc. 62 at ¶57. In addition, no class members have objected to the settlement. This factor weighs in favor of approval. In sum, the majority of the relevant factors weigh in favor of approving the Settlement. It represents a substantial recovery that avoids the risks associated with protracted litigation in a document-intensive wage and hour case. D. Class Representative Payments; Class Counsel Attorneys’ Fees Payment and Class Counsel Litigation Expenses Payment. Where the payment of attorney’s fees is also part of the negotiated settlement, the fee settlement must be separately evaluated for fairness in the context of the overall settlement. Knisley v. Network Assocs., 312 F.3d 1123, 1126 (9th Cir.2002). Plaintiffs and their counsel seek (and Defendants do not oppose), awards to Plaintiffs of Class Representative Payments of $5,000 each, in addition to their Settlement Shares, in compensation for their services as Class Representatives; a Class Counsel Attorneys’ Fees Payment of $100,000 (or 33-1/3% of the Gross Settlement Amount); and a Class Counsel Litigation Expenses Payment of $8,967. See Settlement § III.B.1-2. 1. Class Representative Payments of $5,000 Each are Fair and Reasonable. Plaintiffs seek payments in the amount of $5,000 to Class Representatives Enriquez Vasquez and Juan Andres Ruiz. These payments are intended to recognize the time and efforts Mr. Vasquez and Mr. Ruiz spent on behalf of the Class Members. Mallison Decl., Doc. 62, at ¶ 67.; see generally Vasquez Decl., Doc. 63; Ruiz Deck, Doc. 64. “Courts routinely approve incentive awards to compensate" }, { "docid": "20450216", "title": "", "text": "will be bound by the settlement, and therefore must independently determine the fairness of any settlement. Id. However, the district court’s role in intruding upon what is otherwise a private consensual agreement is limited to the extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or collusion between the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable, and adequate to all concerned. FDIC v. Alshuler, 92 F.3d 1503, 1506 (9th Cir.1996). Therefore, the settlement hearing is not to be turned into a trial or rehearsal for trial on the merits. Officers for Justice v. Civil Service Com., 688 F.2d 615, 625 (9th Cir.1982). Ultimately, the district court’s determination is nothing more than an amalgam of delicate balancing, gross approximations, and rough justice. Id. In determining whether a settlement agreement is fair, adequate, and reasonable to all concerned, a district court may consider some or all of the following factors: (1) the strength of the Plaintiffs case (2) the risk, expense, complexity, and likely duration of further litigation; (3) the risk of maintaining class action status throughout the trial; (4) the amount offered in settlement; (5) the extent of discovery completed; (6) the stage of the proceedings; (7) the views and experience of counsel; (8) any opposition by class members; (9) the presence of a governmental participant. Linney v. Cellular Alaska Pshp., 151 F.3d 1234, 1242 (9th Cir.1998). This list of factors is not exclusive and the court may balance and weigh different factors depending on the circumstances of each case. Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370, 1376 (9th Cir.1993). 1. Strength of Plaintiffs’ Case. “An important consideration in judging the reasonableness of a settlement is the strength of the plaintiffs’ case on the merits balanced against the amount offered in the settlement.” Nat’l Rural Telecom. Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 528 (C.D.Cal.2004) (quoting 5 Moore’s Federal Practice § 23.85[2][b] (Matthew Bender 3d. ed.)). However, in balancing these factors, “a proposed settlement is not to be judged against a speculative measure of what might" }, { "docid": "23681628", "title": "", "text": "Federal Rule of Civil Procedure 23(e)’s requirement that the settlement be “fair, reasonable, and adequate.” (See Bagolie Br. at 18-28.) Second, the objectors dispute the fairness and adequacy of the settlement’s plan of allocation for a portion of the settlement. Specifically, they urge that the proposed Indirect Purchaser Settlement distribution is “patently unfair” and presents “an intra-class conflict of interest that renders Class Counsel, as well as the class representative, inadequate.” (See Murray Consol. Br. at 13; Quinn Br. at 63-64; Petrus Br. at 12-13.) We address each objection in order. 1. Approval of the Settlement Before approving a class settlement agreement, a district court must find that the requirements for class certification under Rule 23(a) and (b) are met, and must separately “determine that the settlement is fair to the class under [Rule] 23(e).” Ins. Broker., 579 F.3d at 257. Rule 23(e) provides that a proposed settlement may only be approved “after a hearing and on finding that it is fair, reasonable, and adequate.” Fed.R.Civ.P. 23(e)(2). In this process, “trial judges bear the important responsibility of protecting absent class members,” and must be “assur[ed] that the settlement represents adequate compensation for the release of the class claims.” Pet Food, 629 F.3d at 349 (citation & quotations omitted); see also Ehrheart, 609 F.3d at 593 (stressing that “[t]he purpose of Rule 23(e) is to protect the unnamed members of the class,” and that a “district court acts as a fiduciary” for absent class members) (citing Warfarin, 391 F.8d at 534). “[W]here settlement negotiations precede class certification, and approval for settlement and certification are sought simultaneously, district courts should be even ‘more scrupulous than usual’ when examining the fairness of the proposed settlement.” Warfarin, 391 F.3d at 534 (quoting GM Truck, 55 F.3d at 805). In assessing the fairness of a proposed settlement, we have articulated nine well-established primary factors for a district court to consider in conducting its inquiry: (1) the complexity, expense and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed;" }, { "docid": "17851138", "title": "", "text": "Settlement Fund weighs in favor of approving the Settlement. (5) Whether the Class has been fairly and adequately represented during settlement negotiations “Great weight is accorded to the recommendation of counsel, who are most closely acquainted with the facts of the underlying litigation. This is because parties represented by competent counsel are better positioned than courts to produce a settlement that fairly reflects each party’s expected outcome in the litigation.” DIRECTV, Inc., 221 F.R.D. at 528; Adorna, 913 F.Supp.2d at 977. Class Counsel asserts that they are both familiar with the specific facts and issues arising in this case and also have considerable expertise in TCPA and class action litigation. For example, Mr. Kazerouni had litigated over 300 consumer class actions, and 50% of his class action practice involves litigating TCPA claims. See Kazerounian Decl., Doc. No. 63-2, ¶ 10. Additionally, Joshua B. Swigart and Todd Friedman also have significant experience in consumer class action litigation, including TCPA lawsuits. See Swigart Decl., Doc. No. 63-8, ¶¶ 8 — 9; Friedman Decl., Doc. No. 63-9, ¶¶ 9-10. It appears the Class was adequately repi-esented by competent counsel. This factor supports approval of the settlement. (6) The reaction of the Class to the proposed settlement The Ninth Circuit has held that the number of class members who object to a proposed settlement is a factor to be considered. Mandujano v. Basic Vegetable Prods. Inc., 541 F.2d 832, 837 (9th Cir.1976). The absence of a large number objectors supports the fairness, reasonableness, and adequacy of the settlement. See In re Austrian & German Bank Holocaust Litig., 80 F.Supp.2d 164, 175 (S.D.N.Y.2000) (“If only a small number of objections are received, that fact can be viewed as indicative of the adequacy of the settlement.”) (citations omitted); Boyd v. Bechtel Corp., 485 F.Supp. 610, 624 (N.D.Cal.1979) (finding “persuasive” the fact that 84% of the class has filed no opposition). As discussed above, there were 308,026 Class Members claims filed out of 3,982,-645 potential class members, resulting in a higher than average claims rate of 7.7%. The Claims Administrator received 168 requests for exclusion out of" }, { "docid": "14248410", "title": "", "text": "of settlement. vi. The Experience and Views of Counsel “Parties represented by competent counsel are better positioned than courts to produce a settlement that fairly reflects each party’s expected outcome in litigation.” Rodriguez, 563 F.3d at 967. Consequently, “ ‘[t]he recommendations of plaintiffs’ counsel should be given a presumption of reasonableness.’ ” In re Omnivision Techns., Inc., 559 F.Supp.2d 1036,1043 (N.D.Cal.2008). Here, Plaintiffs’ counsel states that he has defended or prosecuted over 20 class actions in the past 20 years and knows the risks both sides face. Dkt. No. 140 at 17. The proposed Settlement is the result of extensive arm’s-length bargaining and was achieved only after extensive analysis, hard-fought litigation, and difficult negotiations — including two formal mediations before retired judges (Judge Tevrizian and Judge West of JAMS). See Dkt. No. 130 at 28. Given the uncertainty and substantial expense of going forward with a motion for class certification and trial on the merits against eBay, counsel believes the settlement is in the best interests of the class. Verges Deck ¶¶ 6, 25. Consequently, this factor favors approval of settlement. vii. The Presence of a Governmental Participant The Class Action Fairness Act, or “CAFA,” requires that notice of a settlement be given to state and federal officials and provides those officials a window of time to comment. 28 U.S.C. § 1715(b). “Although CAFA does not create an affirmative duty for either state or federal officials to take any action in response to a class action settlement, CAFA presumes that, once put on notice, state or federal officials will raise any concerns that they may have during the normal course of the class action settlement proeedui’es.” Gamer, 2010 WL 1687832, at *14. Here, no state Attorney Genei’al has responded to the CAFA notice, indicating that such officials either do not object to the Settlement. See Dkt. No. 140 at 17-18. Thus, this factor favors the settlement. viii. The Reaction of Class Members A low number of opt-outs and objections in comparison to class size is typically a factor that supports settlement approval. See Hanlon, 150 F.3d at 1027 (“[T]he fact" }, { "docid": "23219660", "title": "", "text": "a class action pursuant to a settlement, a court acts in part as a fiduciary to absent class members and must be satisfied that the settlement does not unfairly compromise their rights. Long Island Lighting Co., 710 F.Supp. at 1439; see also In re Warner Communications Sec. Litig., 798 F.2d 35, 37 (2d Cir. 1986) (“In approving the proposed settlement of a class action, a district court has the fiduciary responsibility of ensuring that the settlement is fair and not a product of collusion, and that the class members’ interests were represented adequately.”). The Fourth Circuit recently noted: “[t]he primary concern addressed by Rule 23(e) is the protection of class members whose rights may not have been given adequate consideration during the settlement negotiations.” In re Jiffy Lube Sec. Litig., 927 F.2d 155, 158, 161 (4th Cir.1991). If the settlement is intended to preclude further litigation by absent persons, due process requires that their interests be adequately represented and protected. See id.; Martin v. Wilks, 490 U.S. 755, 109 S.Ct. 2180, 2184 n. 2, 104 L.Ed.2d 835 (1989); Manual for Complex Litigation § 23.14, at 166 (2d ed. 1985). Reasonableness and adequacy of any settlement must be judged in light of the totality of the circumstances of the litigation. In re Agent Orange Prod. Liab. Litig., 597 F.Supp. at 761. The nature and goals of the action will delineate the possible consequences of proceeding in absence of settlement. Thus, the courts will not review the proposed compromise in a vacuum, but rather against the realistic alternatives that the courts perceive or have been presented by the parties. See Thompson v. Midwest Found. Indep. Physicians Ass’n, 124 F.R.D. 154, 159 (S.D. Ohio 1988) (in considering opposition to settlement, court must view agreement in its entirety, rather than isolating individual components for analysis). Finally, the courts must review the Settlement according to its terms without substituting their own judgment for that of the attorneys and class members who have negotiated in good faith. In re Warner Communications Sec. Litig., 798 F.2d 35, 37 (2d Cir.1986); see also Evans v. Jeff D., 475" }, { "docid": "1403564", "title": "", "text": "44 (2d Cir.1996). The proposed settlement was reached among the settling parties after the completion of all liability and damages discovery. In connection with these discovery proceedings, approximately 365 depositions were taken across the country, and hundreds of thousands of pages of documents were exchanged by the parties. In addition, all summary judgment motions had been decided by the Court prior to the proposed settlement as well as a number of motions in limine. As a result, the proposed settlement was reached only after the parties had exhaustively examined the factual and legal bases of the disputed claims. This fact strongly militates in favor of the Court’s approval of the settlement. F. The Experience and Views of Counsel “Great weight” is accorded to the recommendation of counsel, who are most closely acquainted with the facts of the underlying litigation.” In re Painewebber Ltd. P’ships Litig., 171 F.R.D. 104, 125 (S.D.N.Y.1997). This is because “[pjarties represented by competent counsel are better positioned than courts to produce a settlement that fairly reflects each party’s expected outcome in the litigation.” Pacific Enters. Sec. Litig., 47 F.3d at 378. Thus, “the trial judge, absent fraud, collusion, or the like, should be hesitant to substitute its own judgment for that of counsel.” Cotton v. Hinton, 559 F.2d 1326,1330 (5th Cir.1977); Hanrahan v. Britt, 174 F.R.D. 356, 366-368 (E.D.Pa.1997) (presumption of correctness applies to a class action settlement reached in arms’-length negotiations between experienced, capable counsel after meaningful discovery, citing Manual for Complex Litigation, Second § 30.41 (1985) and Ratner v. Bennett, No. 92-4701, 1996 WL 243645, *5 (E.D.Pa. May 8,1996)). Class Counsel have demonstrated a high degree of competence in the litigation of this case. Counsel together with the Class Representatives strongly believe that the Proposed Settlement is a fair, adequate, and reasonable resolution of the Class’ dispute with DIRECTV and is preferable to continued litigation. G. The Presence of a Governmental Participant There is no governmental participant in this Class Action. As a result, this factor does not apply to the Court’s analysis. H. Reaction of the Class Members to the Proposed Settlement “The" }, { "docid": "157932", "title": "", "text": "Members “is designed to optimize the class recovery.”); Decl. of Prof. Geoffrey Miller [DE # 1885-9] at 7 (“The automatic nature of the individual payments is an important benefit ... ”). Settlement Class Members will receive the benefit automatically, without needing to fill out any claim form or indeed to take any action whatsoever. In contrast, the Closson settlement required potential settlement class members to submit claims forms themselves in order to receive benefits. f. The Opinions of Settlement Class Counsel, Class Representatives, and Absent Settlement Class Members Strongly Favor Approval of the Settlemént. The Court gives “great weight to the recommendations of counsel for the parties, given their considerable experience in this type of litigation.” Warren, 693 F.Supp. at 1060; see also Mashbum, 684 F.Supp. at 669 (“If plaintiffs’ counsel did not believe these factors all pointed substantially in favor of this settlement as presently structured, this Court is certain that they would not have signed their names to the settlement agreement.”); In re Domestic Air Transp., 148 F.R.D. at 312-13 (“In determining whether to approve a proposed settlement, the Court is entitled to rely upon the judgment of the parties’ experienced counsel. ‘[T]he trial judge, absent fraud, collusion, or the like, should be hesitant to substitute its own judgment for that of counsel.’” (citations omitted)). Settlement Class Counsel have made clear that they believe that this Settlement is extraordinary and deserving of Final Approval. Joint Decl. at 23. g. Other Issues Raised by Objectors Regarding the Fairness of the Settlement. i. The Release is Proper. The Court rejects the contention of certain Objectors that the release in the Settlement is improper. The release permissibly protects BofA from follow-on claims, but not from new claims arising after the cutoff date in the Agreement or from claims unrelated to the subject matter of these cases. By its own terms, the release is tailored to claims that relate to or arise out of conduct that is the subject matter of the complaints. [DE # 1471, Ex. A, ¶ 98]. The release withstands scrutiny because this litigation concerned all of the released" }, { "docid": "20450222", "title": "", "text": "v. Britt, 174 F.R.D. 356, 366-368 (E.D.Pa.1997) (presumption of correctness applies to a class action settlement reached in arms’-length negotiations between experienced, capable counsel after meaningful discovery). Here, class counsel understood the complex risks and benefits of any settlement and concluded that the proposed Settlement was a just, fair, and certain result. This factor weighs in favor of approval. 7. Presence of a Governmental Participant. Pursuant to California’s Private Attorneys General Act (“PAGA”), Cal. Lab.Code. § 2699.3, California granted Plaintiffs the right to stand in the shoes of the State of California to enforce these claims on behalf of the state and employees. As a result, Plaintiffs stand as a proxy for the State and have obtained $10,000 for the State of California. This factor does not weigh against approval. 8. Reaction of Class Members to the Proposed Settlement. “The reactions of the members of a class to a proposed settlement is a proper consideration for the trial court.” Nat’l Rural Telecom. Coop., 221 F.R.D. at 528 (quoting 5 Moore’s Fed. Practice § 23.85[2][d]). Class representatives’ opinions of the settlement are especially important because “[t]he representatives’ views may be important in shaping the agreement and will usually be presented at the fairness hearing; they may be entitled to special weight because the representatives may have a better understanding of the case than most members of the class.” Id. (citing Manual for Complex Litigation, Third, § 30.44 (1995)). The Class Representatives, who have an extensive understanding of the merits of the case and the Settlement, se e Vasquez Decl., Doc. 63 at ¶¶ 7-17; Ruiz Decl., Doc. 64 at ¶¶ 7-17, are strongly in support of the Settlement, Mallison Decl., Doc. 62 at ¶57. In addition, no class members have objected to the settlement. This factor weighs in favor of approval. In sum, the majority of the relevant factors weigh in favor of approving the Settlement. It represents a substantial recovery that avoids the risks associated with protracted litigation in a document-intensive wage and hour case. D. Class Representative Payments; Class Counsel Attorneys’ Fees Payment and Class Counsel Litigation Expenses Payment." }, { "docid": "20450220", "title": "", "text": "same basis, the only lack of class eligibility is that lost compensation calculations are individual. This would not defeat class treatment. This factor is neutral. 4. Amount Offered in Settlement. The recovery of $300,000, or approximately $2600 per claimant net of all expenses, is a sizeable settlement in a wage and hour case involving low-income workers. Although a higher per claimant award was arguably possible, “the very essence of a settlement is compromise, a yielding of absolutes and an abandoning of highest hopes.” Linney v. Cellular Alaska P’ship, 151 F.3d 1234, 1242 (9th Cir.1998) (internal citation and quotation omitted). This factor weighs in favor of approval. 5. Extent of Discovery Completed, and the Stage of the Proceedings. A settlement following sufficient discovery and genuine arms-length negotiation is presumed fair. See City P’ship Co. v. Atlantic Acquisition Ltd. P’ship, 100 F.3d 1041, 1043 (1st Cir.1996). Here, Plaintiffs conducted significant discovery of the underlying timekeeping and payroll documents in this case, consisting of tens of thousands of pages, and undertook in depth interviews of numerous Class members, resulting in informed prosecution and eventual settlement of the matter. By the time the settlement was reached, the litigation had proceeded to a point in which both plaintiffs and defendants “ha[d] a clear view of the strengths and weaknesses of their cases.” In re Warner Communications Sec. Litig., 618 F.Supp. 735, 745 (S.D.N.Y.1985). This factor weighs in favor of approval. 6. Experience and Views of Counsel. In reviewing the opinions of counsel, “great weight” is accorded to the recommendation of the attorneys. In re PaineWebber Ltd. P’ships Litig., 171 F.R.D. 104, 125 (S.D.N.Y.1997). They are the ones who are most closely acquainted with the facts of the underlying litigation. Id. “Parties represented by competent counsel are better positioned than courts to produce a settlement that fairly reflects each party’s expected outcome in the litigation.” Pac. Enters. Sec. Litig., 47 F.3d 373, 378 (9th Cir.1995). “[T]he trial judge, absent fraud, collusion, or the like, should be hesitant to substitute its own judgment for that of counsel.” Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir.1977); Hanrahan" }, { "docid": "20450221", "title": "", "text": "resulting in informed prosecution and eventual settlement of the matter. By the time the settlement was reached, the litigation had proceeded to a point in which both plaintiffs and defendants “ha[d] a clear view of the strengths and weaknesses of their cases.” In re Warner Communications Sec. Litig., 618 F.Supp. 735, 745 (S.D.N.Y.1985). This factor weighs in favor of approval. 6. Experience and Views of Counsel. In reviewing the opinions of counsel, “great weight” is accorded to the recommendation of the attorneys. In re PaineWebber Ltd. P’ships Litig., 171 F.R.D. 104, 125 (S.D.N.Y.1997). They are the ones who are most closely acquainted with the facts of the underlying litigation. Id. “Parties represented by competent counsel are better positioned than courts to produce a settlement that fairly reflects each party’s expected outcome in the litigation.” Pac. Enters. Sec. Litig., 47 F.3d 373, 378 (9th Cir.1995). “[T]he trial judge, absent fraud, collusion, or the like, should be hesitant to substitute its own judgment for that of counsel.” Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir.1977); Hanrahan v. Britt, 174 F.R.D. 356, 366-368 (E.D.Pa.1997) (presumption of correctness applies to a class action settlement reached in arms’-length negotiations between experienced, capable counsel after meaningful discovery). Here, class counsel understood the complex risks and benefits of any settlement and concluded that the proposed Settlement was a just, fair, and certain result. This factor weighs in favor of approval. 7. Presence of a Governmental Participant. Pursuant to California’s Private Attorneys General Act (“PAGA”), Cal. Lab.Code. § 2699.3, California granted Plaintiffs the right to stand in the shoes of the State of California to enforce these claims on behalf of the state and employees. As a result, Plaintiffs stand as a proxy for the State and have obtained $10,000 for the State of California. This factor does not weigh against approval. 8. Reaction of Class Members to the Proposed Settlement. “The reactions of the members of a class to a proposed settlement is a proper consideration for the trial court.” Nat’l Rural Telecom. Coop., 221 F.R.D. at 528 (quoting 5 Moore’s Fed. Practice § 23.85[2][d]). Class" } ]

[ { "docid": "12298812", "title": "", "text": "residence and the whereabouts of the S. S. Elwood are not disputed, libellant claims that the United States had waived any objection it might have to the venue in the Southern District of New York by pleading to the merits. But although the Supreme Court held that improper venue may be waived, Hoiness v. United States, 335 U.S. 297, 69 S.Ct. 70, in Untersinger v. United States, 2 Cir., 172 F.2d 298, we recently decided that a party may plead to the merits and at the same time object to the venue, without losing any right to insist on its obj ection. The libellant further argues that he set forth his residences in California, Illinois, and later in California, in answer to respondent’s interrogatories so that the latter well knew that libellant was not a resident of the Southern District of New-York. He therefore contends that respondent, if it wished to continue its objection to the venue, should have promply moved for a dismissal instead of continuing to rely on the objections raised in its separate defense and delaying its motion to dismiss a number of months. But the separate defense still existed and the contention that it was waived by not moving promptly seems to us without merit. It is based on no authority that we are aware of and if sustained would deprive the respondent of the right to obtain a proper venue either under the provisions of Section 2 of the Suits in Admiralty Act or under the provisions for transferring the suit to the appropriate district recently enacted in Section 1406(a) of the Judicial Code. The libellant would lose a right of any substance only if the suit was dismissed (as it was here by the court below) and his claim in the meantime had become barred by the two-year statute of limitations. But Section 1406(a) of Title 28 U.S.C.A. preserves the suit by providing that: “The district court of a district in which is filed a case laying venue in the wrong division or district shall transfer such case to any district or division in" } ]

[ { "docid": "21243612", "title": "", "text": "revised the Judicial Code and enacted Sec. 1404(a). This section of Title 28 provides that for the convenience of the parties and witnesses, and in the interest of justice, a civil action may be transferred to any district or division where it might have been brought originally. The first Supreme Court construction of Sec. 1404(a) is found in a series of cases decided on May 31, 1949. Ex parte Collett, 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed. 1207; Kilpatrick v. Texas & Pacific R. Co., 337 U.S. 75, 69 S.Ct. 953, 93 L.Ed. 1223. Included in the cases handed down on that date was United States v. National City Lines, 337 U.S. 78, 69 S.Ct. 955, 93 L.Ed. 1226, in which the court held that the section applied to antitrust actions. The relief sought by the defendants is within the provisions of the statute since both defendants have their principal places of business in the Eastern District of Michigan and consequently the action could have been brought in that district. Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254, decided June 13, 1960. In determining whether a case should be transferred to another district under the provisions of Sec. 1404(a), the right to determine the balance of convenience between the litigants is within the sound discretion of the District Court and unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055; Sun Oil Co. v. Lederle, 6 Cir., 199 F.2d 423; Morehead v. Barksdale, 4 Cir., 263 F.2d 117; Fannin v. Jones, 6 Cir., 229 F.2d 368. The statute requires the moving party to show more than a limited degree of added convenience for trying the case in a different jurisdiction. It requires a strong and preponderant balance in favor of the defendant before the plaintiff’s choice of a forum will be denied. In considering the motion the court is limited to the three factors specifically mentioned in the statute, namely, convenience of" }, { "docid": "17699006", "title": "", "text": "L.Ed. 676. And see Admiralty Rule 44, construed in The Cleona, D.C., 37 F.2d 599, 600, as a means “to adopt admiralty procedure * * * to the practical needs of justice.” When the trial court announced its intention to dismiss this complaint appellants moved that their action be transferred to the proper district under the provisions of § 1406(a) of Title 28. Thus they recognized, as the court’s order recited, that “jurisdiction of the third party action herein is exclusively under the Suits in Admiralty Act.” In substance this was an application to treat the complaint as a libel in admiralty. “When a cause of action is within the substantive jurisdiction of the District Court for any reason, it does not mar that jurisdiction that the suitor proceeds as libellant in admiralty rather than as plaintiff at law.” Prince Line v. American Paper Exports, 2 Cir., 55 F.2d 1053, 1056. In like manner a pleading wrongly called a complaint may be transferred from the law side to the admiralty side. Cannella v. Lykes Bros. S.S. Co., 2 Cir., 174 F.2d 794, 797. I agree that the court should have exercised its plain jurisdiction to grant this motion to transfer, particularly since the denial of that relief would mean that appellant would lose its admittedly well stated cause of action, since a new action elsewhere would be barred by limitations under the rule of Ryan Stevedoring Co. v. United States, 2 Cir., 175 F.2d 490." }, { "docid": "6122069", "title": "", "text": "or any other, acquires jurisdiction either of the subject matter or of the parties until the action is properly brought in such court. Furthermore, it begs the question to suggest that the Illinois Court acquired jurisdiction via the transfer because that is dependent upon the issue for decision, that is, whether Congress has endowed the transferring court with power to order the transfer. As shown, the action could not properly have been brought in the Illinois Court, and, therefore, it was not a district “where it might have been brought.” Consequently, the Texas Court was without power to order the transfer and the Illinois Court acquired neither jurisdiction nor venue of the action. Our conclusion is based upon what we think is a clear congressional mandate. In Ex parte Collett, 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed. 1207, the Court held that the phrase “any civil action” found in Sec. 1404(a) was applicable to an action under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq. In so doing the Court stated (at page 58 of 337 U.S., at page 946 of 69 S.Ct.): “The court below relied on the language of § 1404(a), supra, which it regarded as ‘unambiguous, direct, clear.’ We agree. The reach of ‘any civil action’ is unmistakable. The phrase is used without qualification, without hint that some should be excluded.” In our view, the phrase “where it might have been brought” contained in the same section is equally unambiguous, direct and clear. Notwithstanding the emphatic view which we entertain, it must be conceded that a solution of the problem has engendered much controversy in the courts and that there is respectable opposing authority, although upon analysis it is not as imposing as counsel would have us believe. An attempt to distinguish or analyze such cases in detail would unduly prolong this discussion. A reading of all the cases where the question has been considered leads to the view that the weight of authority sustains our conclusion in the matter. Respondent asserts that four Courts of Appeals have sustained the power of the" }, { "docid": "21243611", "title": "", "text": "was not subject to the application of the doctrine of forum non conveniens. In the case of United States v. National City Lines, 334 U.S. 573, 68 S.Ct. 1169, 92 L.Ed. 1584, the Supreme Court pointed out that the legislative history of Section 12 of the Clayton Act clearly established that Congress intended to leave no room for judicial discretion to apply the doctrine of forum non conveniens to deprive the plaintiff of the choice of forum given by that section. It was emphasized in the opinion that the purpose of Congress was clear to confer upon the plaintiff in civil antitrust proceedings against corporations the right of choice among the specific venues and that the considerations of policy which might otherwise justify the exercise of judicial discretion in such matters had become irrelevant. The purpose of the advocates of change was to give the plaintiff a right to bring suit and have it tried in the district where the defendant had committed violations of the Act and had inflicted forbidden injuries. In 1948 Congress revised the Judicial Code and enacted Sec. 1404(a). This section of Title 28 provides that for the convenience of the parties and witnesses, and in the interest of justice, a civil action may be transferred to any district or division where it might have been brought originally. The first Supreme Court construction of Sec. 1404(a) is found in a series of cases decided on May 31, 1949. Ex parte Collett, 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed. 1207; Kilpatrick v. Texas & Pacific R. Co., 337 U.S. 75, 69 S.Ct. 953, 93 L.Ed. 1223. Included in the cases handed down on that date was United States v. National City Lines, 337 U.S. 78, 69 S.Ct. 955, 93 L.Ed. 1226, in which the court held that the section applied to antitrust actions. The relief sought by the defendants is within the provisions of the statute since both defendants have their principal places of business in the Eastern District of Michigan and consequently the action could have been brought in that district. Hoffman v. Blaski, 363" }, { "docid": "1469463", "title": "", "text": "of the Federal Employers’ Liability Act. The language of Sec. 1404(a), Title 28 U.S. C.A. is clear and unambiguous and effects no change or modification of a plaintiff’s rights under Sec. 6 of the Federal Employers’ Liability Act. In Ex parte Collett, 337 U.S. 55, 60, 69 S.Ct. 944, 947, 959, the Court stated: “Section 6 of the Liability Act defines the proper forum; § 1404(a) of the Code deals with the right to transfer an action properly brought. The two sections deal with two separate and distinct problems.” The doctrine of forum non conveniens is applicable to actions under the Federal Employers’ Liability Act. Ex Parte Collett, supra. As the court said in that case, 337 U.S. at page 60, 69 S.Ct. at page 947: “Section 1404(a) does not limit or otherwise modify any right granted in § 6 of the Liability Act or elsewhere to 'bring suit in a particular district.” This action has been properly brought in this district. The question that must now be determined is whether or not, under the provisions of Section 1404(a) of Title 28 U.S.C.A., the facts in this case warrant the granting of defendant’s motion to transfer this cause to the United States District Court for the District 6f Massachusetts. Sec. 1404(a) of the U.S.C.A. provides: “Section 1404. Ohange of Venue (a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” In essence, the section just quoted is a codification of the doctrine of forum non conveniens and does not alter the rule set forth in Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055. Cf. Auburn Capitol Theatre Corp. et al. v. Schine Chain Theatres, Inc. et al., D.C., 83 F.Supp. 872. It is significant that in the Reviser’s notes, Title 28 U.S.C.A., it is stated that Section 1404(a) “was drafted in accordance with the doctrine of forum non conveniens.” What circumstances must be present in order to justify or require the" }, { "docid": "2283799", "title": "", "text": "492. It is unnecessary to belabor the construction of the phrase in question or to engage in a lengthy discussion of semantics. It is sufficient to say that the words ‘any civil action’, as used in 28 U.S.C. § 1404(a), are broad enough, in my view, to embrace actions in Admiralty. Paco Tankers, Inc. v. Atlantic Land & Improvement Co., D.C.1952, 108 F.Supp. 406; Le Mee v. Streckfus Steamers, D.C.1951, 96 F.Supp. 270; Crawford v. Ann Arbor R. Co., D.C.1950, 94 F.Supp. 29; and St. Paul Fire & Marine Ins. Co. v. American Mail Line, Limited, D.C.1950, 94 F.Supp. 28, are all in accord. I am of the opinion that the Court may, under the statute, transfer an Admiralty case, just as it may any other suit, if the facts of the particular case warrant such action.” The conflict of views having been noted, suffice it to say, we cast our vote in favor of those expressed by Judge Freed in Kinsman Transit Co. v. Dunham Towing and Wrecking Co., supra, and accordingly answer the first question presented in the affirmative. II. In support of- the proposition that it would be more convenient for the parties and witnesses to try these actions in the Southern District of Alabama, Southern Division, defendant’s affidavit discloses the following facts and circumstances: The accident which gave rise to these actions occurred while the “Ocean Victory” was in port at Mobile, Alabama. Plaintiff’s home is in New Orleans, Louisiana. The Shipping Articles covering the voyage during which the accident in question occurred were opened and subsequently closed at New Orleans, Louisiana. Following the accident which is the subject matter of the within actions, plaintiff received treatment at the United States Marine Hospital, New Orleans, Louisiana. The accident which is the subject of the within actions occurred during the course of certain repairs which were being made aboard the SS “Ocean Victory” by a shoreside contractor, Henze Instrument & Valve, Inc., of Mobile, Alabama. This company had sent representatives aboard the “Ocean Victory” to effect the aforesaid repairs; the accident which is the subject of the" }, { "docid": "17699005", "title": "", "text": "of the opinion that the district court had jurisdiction for a further reason. Even if it were assumed that it was improper to file a third party complaint in the original plaintiff’s law action, yet plainly enough the pleading filed stated a cause of action under the Suits in Admiralty Act. Assuming the lack of authority to treat this as a third-party complaint in the law action, yet its defects were merely defects in form. Conceding that it was filed under the wrong number, and called by the wrong name, it was nevertheless filed in a court which had jurisdiction to entertain a suit in admiralty under the Act. The United States appeared and answered. The mere fact that it was called a “complaint” instead of a “libel” should make no difference in substance to a court having admiralty jurisdiction. “For the ancient admiralty teaching is that, ‘The rules of pleading in the admiralty are exceedingly simple and free from technical requirements.’ ” Archawski v. Hanioti, 350 U.S. 532, 534, 76 S.Ct. 617, 620, 100 L.Ed. 676. And see Admiralty Rule 44, construed in The Cleona, D.C., 37 F.2d 599, 600, as a means “to adopt admiralty procedure * * * to the practical needs of justice.” When the trial court announced its intention to dismiss this complaint appellants moved that their action be transferred to the proper district under the provisions of § 1406(a) of Title 28. Thus they recognized, as the court’s order recited, that “jurisdiction of the third party action herein is exclusively under the Suits in Admiralty Act.” In substance this was an application to treat the complaint as a libel in admiralty. “When a cause of action is within the substantive jurisdiction of the District Court for any reason, it does not mar that jurisdiction that the suitor proceeds as libellant in admiralty rather than as plaintiff at law.” Prince Line v. American Paper Exports, 2 Cir., 55 F.2d 1053, 1056. In like manner a pleading wrongly called a complaint may be transferred from the law side to the admiralty side. Cannella v. Lykes Bros." }, { "docid": "3610717", "title": "", "text": "giving District Courts jurisdiction. Section 1 of the statute reads: “The district courts shall have original jurisdiction, * * of: (1) Any civil case of admiralty * * * 28 U.S.C.A. § 1333. Where venue is laid in the wrong district in an admiralty case, the general statute, applicable to all civil cases, for sending the case to the Court of the proper venue is applicable. 28 U.S.C.A. § 1406(a). Orr v. United States, 2 Cir., 174 F.2d 577. On the same day on which the Supreme Court decided Ex Parte Collett it also decided United States v. National City Lines, 337 U.S. 78, 69 S.Ct. 955, 959, 93 L. Ed. 1226, holding the change of venue statute applied to anti-trust suits. In a dissenting opinion Justice Douglas interpreted the majority ruling as meaning that the change of venue statute will apply to suits in admiralty. Ordinarily we would not cite a dissenting opinion as authority for a holding, but we agree with it and the particular circumstance of the language quoted from the dissenting opinion of Justice Douglas represents his interpretation of the majority opinion and is not in conflict with the majority opinion. In the absence of anything to the contrary, judicial interpretation of the Supreme Court’s opinion, by one of its members, should be given great weight. The Court finds the transfer of this case for trial from this District to the United States District Court for the Eastern District of Louisiana, sitting at New Orleans, Louisiana, is necessary for the convenience of the parties and the witnesses, and in the interest of justice and that a speedy, fair and inexpensive hearing may be had for both parties." }, { "docid": "23340342", "title": "", "text": "The Supreme Court, in Ex parte Collett, 337 U.S. 55, 58, 69 S.Ct. 944, 93 L.Ed. 1207, held that the words “any civil action” in 28 U.S.C. § 1404(a) were used without qualification and applied to all civil actions. As the suits were in admiralty, they might have been instituted in any district court of the United States. Jurisdiction over the person in suits in personam can be obtained, however, only by service of process within the district and jurisdiction in rem can be obtained only by seizure of property therein, and Admiralty Rule 22, 28 U.S.C. requires that libel in in rem proceedings allege that the property is within the district. It is proper to institute a suit in admiralty in a district in which there is no person who can be served with process and no property which can be seized, if it is made to appear that property which can be seized under process therein is expected to be within the district short ly; and .when suit is so instituted it constitutes the bringing of suit within the requirement of 46 U.S.C.A. § 1303(6) that suit be instituted within a period of - one year, even though process is not issued until after the expiration of the one year period.' Ore Steamship Corp. D/S A/S Hassel, 2 Cir., 137 F.2d 326, 329; United Nations Relief & Rehabilitation Administration v. Mormacmail, D.C., 99 F.Supp. 552, 554. When suit is so instituted, which has the effect of preserving the rights of libellant against the running of the statute, and the vessel does not appear in the district as anticipated but does appear or is expected to appear in another district, it seems clearly within both the letter and the spirit of 28 U.S.C. § 1406(a) to transfer the case, in the interest of justice, as having been brought in the wrong district, since the vessel cannot be served there and must be served before the case can proceed. We think, also, that the transfer falls within the letter and spirit of 28 U.S.C. § 1404(a) as being a transfer" }, { "docid": "23340340", "title": "", "text": "of the vessel, appearing specially, excepted to the court’s jurisdiction; and the District Judge, being of opinion that the District Court of the Southern District of New York was without power to transfer the cases and that the District Court for the District of Maryland was without power to issue process therein for the seizure of the vessel, filed an •opinion stating that the proceedings would be dismissed unless the libellants should indicate that they desired that the suits be sent back to the Southern District of New York. This they have not done. The principal question presented by the applications for mandamus is whether the District Court for the Southern District of New York had power, under 28 U.S.C. § 1404(a) or 28 U.S.C. § 1406(a), to transfer the proceedings in which process had not been served to another jurisdiction, so that process might be served and libellants be given relief with respect to their claims. We think that this question should be answered in the affirmative. The sections in question provide: ‘ § 1404. Change of venue “(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” “§ 1406. Cure or waiver of defects “(a) The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.” There can be no question, we think, but that these provisions of the Judicial Code apply to suits in admiralty as well as to other cases in the courts. Untersinger v. United States, 2 Cir., 181 F.2d 953; Orr v. United States, 2 Cir., 174 F.2d 577; Arrowhead Co. Inc., v. The Aimee Lykes, D.C., 101 F.Supp. 895; Crawford v. Ann Arbor Railroad Co., D.C., 94 F.Supp. 29; St. Paul Fire & Marine Ins. Co. v. American Mail Line Ltd., D.C., 94 F.Supp. 28." }, { "docid": "6227664", "title": "", "text": "the transfers and that the Indiana court thereby acquired jurisdiction, and further, that the place of trial being one of venue rather than jurisdiction, no question can be raised in view of the fact that the parties consented to the Southern District of Indiana as the forum for trial. § 1404(a), entitled “Change of venue”, provides: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other dis trict or division where it might have been brought(Italics ours.) The instant controversy turns entirely upon the scope to be given the italicized words. The libeled goods were introduced into commerce by petitioner at Elwood, Indiana, within the jurisdiction of the Southern District of that State, and shipped by it to a point within the Missouri District where they were seized. Petitioner contends that the libel actions might have been brought either in the District of Indiana wherein the shipment originated or in any other District through which the goods passed on their journey to Missouri, the place where they were seized. Respondent contends to the contrary, that is, that no action could have been brought prior to the time the goods were seized, and that the Missouri court was the only court which could or did acquire jurisdiction. Petitioner relies almost in toto upon the construction which the Supreme Court has placed upon § 1404(a) in two recent decisions. Ex Parte Collett, 337 U.S. 55, 69 S.Ct. 944, 959, 93 L.Ed. 1207; United States v. National City Lines, 337 U.S. 78, 69 S.Ct. 955, 959, 93 L.Ed. 1226. In the Collett case, it was held that § 1404(a) was applicable to actions under the Federal Employers’ Liability Act, 45 U.S.C. A. § 51 et seq., and in the National City Lines case, to civil suits by the government against corporations under the antitrust laws. The controlling and determining .factor, as we understand, in each of these cases was that the application of § 1404(a) did not modify or alter the existing rights of the parties, in one instance the" }, { "docid": "22327031", "title": "", "text": "if the libel be in rem it shall state “that the property is within the district,” we are told that in practice the common, if not universal, jurisdictional statement in libels in rem recites “That the vessel now is, or, during the pendency of process herein, will be, within the District and the jurisdiction of the Court.” See Internatio-Rotterdam, Inc., v. Thomsen, 218 F. 2d 514, 515-516 (C. A. 4th Cir.)— in some other aspects an anomalous opinion. “§ 1404. Change of venue. “(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” Rule 44. “Right of Trial Courts To Make Rules of Practice “In suits in admiralty in all cases not provided for by these rules or by statute, the District Courts are to regulate their practice in such a manner as they deem most expedient for the due administration of justice, provided the same are not inconsistent with these rules.” Torres v. Walsh, 221 F. 2d 319, 321 (C. A. 2d Cir.); Internatio-Rotterdam, Inc., v. Thomsen, 218 F. 2d 514, 515 (C. A. 4th Cir.), and see Ex parte Collett, 337 U. S. 55, 58; United States v. National City Lines, Inc., 337 U. S. 78. Respondents say in their brief: “A transfer on motion of a claimant and a transfer on motion of a libellant are two different things. We do not here contend, and it is our submission that it would be error for a Court to hold, that a coercive transfer of a claimant to a different jurisdiction than that in which the suit was filed is proper. The concept of transferee jurisdiction is that there must be two available forums, and unless the moving party is the claimant, there is no secondary or transferee forum to which the case could be transferred.” Nothing in § 1404 (a), or in its legislative history, suggests such a unilateral objective and we should not, under the guise of interpretation, ascribe to Congress any such" }, { "docid": "3610715", "title": "", "text": "a venue section in the Act of 1789, and whether it included admiralty cases, the Court said: “It may be admitted that an admiralty case is a civil suit in the general sense of that phrase. But that is not the question before us. It is whether that is the meaning of the phrase as used in this section. The intention of the lawmaker constitutes the law. U. S. v. Freeman, 3 How. [556] 563, [11 L.Ed. 724]. A thing may be within the letter of a statute and not within its meaning, or within its meaning though not within its letter. Slater v. Cave, 3 Ohio St. 80, 85; 7 Bac.Abr. tit. Stat. 1, 2, 3, 5. In cases admitting of doubt the intention of the law-maker is to be sought in the entire context of the section, statutes or series of statutes in pari materia. Doe ex dem. Patterson v. Winn, 11 Wheat. 380, 389, 6 L.Ed. 500; Dubois v. McLean, Fed. Cas. No. 4, 107, 4 McLean, 489; 1 Cooley, Black, 59; Doe v. Brandling, 7 Barn. & C. 643; Stowel v. Zouch, 1 Plowd. 365.” Even as early as 1888 we find a holding indicating that there is nothing sacrosanct about venue in admiralty cases. Neptune Steam Nav. Co. v. Sullivan Timber Co., D.C., 37 F. 159. Section 1404 admits of no doubt as to the “intention of the law makers”. The Supreme Court has so declared. In Ex parte Collett, 337 U.S. 55, 69 S.Ct. 944, 946, 959, 93 L.Ed. 1207, the Supreme Court had before it for the first time Section 1404, and there said with respect to the language of the new section on change of venue: “The reach of ‘any civil action’ is unmistakable. The phrase is used without qualification, without hint that some should be excluded. From the statutory text alone, it is impossible to read the section as excising this case from ‘any civil action’ ”. (Emphasis added.) That an admiralty action is now considered a “civil” action seems to be put beyond question by the amended statute of 1949" }, { "docid": "16302231", "title": "", "text": "substantial weight. SEC v. Harwyn Publishing Corp., 232 F.Supp. 274, 277 (S.D.N.Y.1964). The court does not have jurisdiction over all of the defendants and the cases are in conflict whether the court has the power to transfer under section 1404(a) when jurisdiction is lacking. Compare United States v. Berkowitz, 328 F.2d 358, 361 (3d Cir. 1964), with United States Ry. Equip. Co. v. Port Huron & Detroit RR, 58 F.R.D. 588, 591-92 (N.D.Ill.1973), rev’d on other grounds, 495 F.2d 1127 (7th Cir. 1974); Wilson v. Kansas City Southern Ry. Co., 101 F.Supp. 56, 59-61 (W.D.Mo.1951); Burns v. Chubb, 99 F.Supp. 581, 582 (E.D.Pa.1951). Whether or not the court may transfer pursuant to section 1404(a) need not be decided because section 1406(a) of Title 28 provides an alternative source of power to transfer and, in the factual context of this case, the proper resolution of both the motions to dismiss and the motion to transfer. Section 1406(a) provides: The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought. Transfer under section 1406(a) is permitted whether or not the district court has jurisdiction over the defendants. Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962). Veasey argues that the court need not consider transfer under section 1406(a) because if the case were dismissed McLaughlin would be free to sue in Delaware. While Veasey’s contention may have been true when his motion was filed, it appears that the Delaware’s two-year statute of limitations would bar part, if not all, of McLaughlin’s claim. Plaintiff has been unable to show that “threshold” personal jurisdiction exists over Copeland. In view of this deficiency, transfer of this action to the United States District Court for the District of Delaware is particularly appropriate because the three defendants are Delaware citizens and venue is proper under 28 U.S.C. § 1391(a). While transfer to Delaware undoubtedly will cause" }, { "docid": "6122078", "title": "", "text": "district wherein the action ‘might have been brought’ infers that the transferee district must be not only a district wherein venue lies and a complaint may be filed, as indeed one may file a complaint at will, but the transferee district must also be one in which the action might have been legally maintained and service of process effected upon the defendant. This view comprises the weight of authority and is represented by well-reasoned decisions from both the Second and Ninth Circuits.” Foster-Milburn Co. v. Knight, 2 Cir., 181 F.2d 949, and Shapiro v. Bonanza Hotel Co., 9 Cir., 185 F.2d 777. The Court in Gilpin cites other cases which have expressed the same view, including Blackmar v. Guerre, 5 Cir., 190 F.2d 427, 429, wherein the Court stated: “Transfer under those sections [1404(a) and 1406(a)] is limited to districts where the suit could be originally brought. [Citing cases.]” In Ex parte Collett, 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed. 1207, the Court considered the doctrine of forum no conven-iens as it relates to Sec. 1404(a). In that connection, the Court discussed the transfer section together with the venue provision there involved. While the issue in the instant case was not directly involved, we think the reasoning by analogy supports the view that the transferee district must be one where the action could have been properly brought. See 337 U.S. at pages 59 and 60, 69 S.Ct. at page 946. Counsel for respondent attempt to escape the reasoning of Collett on the basis of Norwood v. Kirkpatrick, 349 U.S. 29, 75 S.Ct. 544, 99 L.Ed. 789, which it is claimed broadened the scope to be awarded Sec. 1404(a). The suggestion is without merit. Norwood had nothing to do with the statutory limitation on the power of a District Court to transfer. The case is concerned solely with the matter of the Court’s discretion. The Court stated (at page 32 of 349 U.S., at page 546 of 75 S.Ct.): “As a consequence, we believe that Congress, by the term ‘for the convenience of parties and witnesses, in the interest of" }, { "docid": "2283798", "title": "", "text": "The case of Broussard v. The Jersbek, D.C., 140 F.Supp. 851, 852, considered the issue of whether or not a “civil action” includes a libel in the nature of an in rem proceeding commenced pursuant to Admiralty Law. Involved there was a libel in rem by a seaman against the SS “Jersbek” arising out of a collision between said ship and the Tug “Tarpon”, the vessel on which the libellant was employed. The Court stated as follows: “Manifestly, the term ‘any civil action’ includes a libel in the nature of an in rem proceeding commenced pursuant to admiralty law”. This position was affirmed previously in the case of Kinsman Transit Co. v. Dunham Towing & Wrecking Co., D.C., 122 F.Supp. 911, 912, in which Judge Freed specifically considered the case of Puget Sound Tug & Barge Co. v. The Go-Getter, D.C., 106 F.Supp. 492, a case holding contrary. The Court noted the following: “I am unable to agree with the conclusion reached in Puget Sound Tug and Barge Co. v. The Go-Getter, D.C.1952, 106 F.Supp. 492. It is unnecessary to belabor the construction of the phrase in question or to engage in a lengthy discussion of semantics. It is sufficient to say that the words ‘any civil action’, as used in 28 U.S.C. § 1404(a), are broad enough, in my view, to embrace actions in Admiralty. Paco Tankers, Inc. v. Atlantic Land & Improvement Co., D.C.1952, 108 F.Supp. 406; Le Mee v. Streckfus Steamers, D.C.1951, 96 F.Supp. 270; Crawford v. Ann Arbor R. Co., D.C.1950, 94 F.Supp. 29; and St. Paul Fire & Marine Ins. Co. v. American Mail Line, Limited, D.C.1950, 94 F.Supp. 28, are all in accord. I am of the opinion that the Court may, under the statute, transfer an Admiralty case, just as it may any other suit, if the facts of the particular case warrant such action.” The conflict of views having been noted, suffice it to say, we cast our vote in favor of those expressed by Judge Freed in Kinsman Transit Co. v. Dunham Towing and Wrecking Co., supra, and accordingly answer the" }, { "docid": "3610716", "title": "", "text": "Doe v. Brandling, 7 Barn. & C. 643; Stowel v. Zouch, 1 Plowd. 365.” Even as early as 1888 we find a holding indicating that there is nothing sacrosanct about venue in admiralty cases. Neptune Steam Nav. Co. v. Sullivan Timber Co., D.C., 37 F. 159. Section 1404 admits of no doubt as to the “intention of the law makers”. The Supreme Court has so declared. In Ex parte Collett, 337 U.S. 55, 69 S.Ct. 944, 946, 959, 93 L.Ed. 1207, the Supreme Court had before it for the first time Section 1404, and there said with respect to the language of the new section on change of venue: “The reach of ‘any civil action’ is unmistakable. The phrase is used without qualification, without hint that some should be excluded. From the statutory text alone, it is impossible to read the section as excising this case from ‘any civil action’ ”. (Emphasis added.) That an admiralty action is now considered a “civil” action seems to be put beyond question by the amended statute of 1949 giving District Courts jurisdiction. Section 1 of the statute reads: “The district courts shall have original jurisdiction, * * of: (1) Any civil case of admiralty * * * 28 U.S.C.A. § 1333. Where venue is laid in the wrong district in an admiralty case, the general statute, applicable to all civil cases, for sending the case to the Court of the proper venue is applicable. 28 U.S.C.A. § 1406(a). Orr v. United States, 2 Cir., 174 F.2d 577. On the same day on which the Supreme Court decided Ex Parte Collett it also decided United States v. National City Lines, 337 U.S. 78, 69 S.Ct. 955, 959, 93 L. Ed. 1226, holding the change of venue statute applied to anti-trust suits. In a dissenting opinion Justice Douglas interpreted the majority ruling as meaning that the change of venue statute will apply to suits in admiralty. Ordinarily we would not cite a dissenting opinion as authority for a holding, but we agree with it and the particular circumstance of the language quoted from the dissenting" }, { "docid": "1469462", "title": "", "text": "counsel that such witnesses will have to come to New York and remain for a period of several days, involving expenditures for lodging, subsistence, lost pay and, in the instance of non-employees, travel costs. The court notes that the distance between New York and Boston is approximately 229 miles. Plaintiff argues that, while the defendant is not incorporated under the laws of New York, it does a substantial amount of its business in this district, and the office of its general counsel is located in New York City. Nevertheless, it is not denied that the plaintiff is a resident of Massachusetts, and plaintiff’s counsel does not set forth that any of plaintiff’s witnesses live outside the vicinity of Boston, where the accident is alleged to have occurred, nor is it claimed by plaintiff that any event related to this case took place outside this same vicinity. It can now be stated unequivocally that there is no conflict between the provisions or application of Sec. 1404(a), of Title 28 United States Code, Annotated and Sec. 6 of the Federal Employers’ Liability Act. The language of Sec. 1404(a), Title 28 U.S. C.A. is clear and unambiguous and effects no change or modification of a plaintiff’s rights under Sec. 6 of the Federal Employers’ Liability Act. In Ex parte Collett, 337 U.S. 55, 60, 69 S.Ct. 944, 947, 959, the Court stated: “Section 6 of the Liability Act defines the proper forum; § 1404(a) of the Code deals with the right to transfer an action properly brought. The two sections deal with two separate and distinct problems.” The doctrine of forum non conveniens is applicable to actions under the Federal Employers’ Liability Act. Ex Parte Collett, supra. As the court said in that case, 337 U.S. at page 60, 69 S.Ct. at page 947: “Section 1404(a) does not limit or otherwise modify any right granted in § 6 of the Liability Act or elsewhere to 'bring suit in a particular district.” This action has been properly brought in this district. The question that must now be determined is whether or not, under the" }, { "docid": "2283797", "title": "", "text": "WELSH, District Judge. Plaintiff-libellant (hereinafter called plaintiff), a merchant seaman, has instituted the present actions to recover damages and maintenance and cure, respectively, from his employer, defendant-re spondent (hereinafter called defendant). The actions arise out of injuries sustained by plaintiff while in the employ of the defendant aboard the SS “Ocean Victory”. The matter presently before the Court for disposition is defendant’s motion to transfer the actions to the United States District Court for the Southern District of Alabama, Southern Division, pursuant to Title 28 U.S.C. § 1404(a) which provides: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” The questions presented are as follows : 1. Is the Court’s discretion with respect to the transfer of “any civil action” under 1404(a) applicable to the transfer of Admiralty suits? 2. Will the convenience of parties and witnesses be served by transferring these actions to the Southern District of Alabama, Southern Division? I. The case of Broussard v. The Jersbek, D.C., 140 F.Supp. 851, 852, considered the issue of whether or not a “civil action” includes a libel in the nature of an in rem proceeding commenced pursuant to Admiralty Law. Involved there was a libel in rem by a seaman against the SS “Jersbek” arising out of a collision between said ship and the Tug “Tarpon”, the vessel on which the libellant was employed. The Court stated as follows: “Manifestly, the term ‘any civil action’ includes a libel in the nature of an in rem proceeding commenced pursuant to admiralty law”. This position was affirmed previously in the case of Kinsman Transit Co. v. Dunham Towing & Wrecking Co., D.C., 122 F.Supp. 911, 912, in which Judge Freed specifically considered the case of Puget Sound Tug & Barge Co. v. The Go-Getter, D.C., 106 F.Supp. 492, a case holding contrary. The Court noted the following: “I am unable to agree with the conclusion reached in Puget Sound Tug and Barge Co. v. The Go-Getter, D.C.1952, 106 F.Supp." }, { "docid": "23340341", "title": "", "text": "1404. Change of venue “(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” “§ 1406. Cure or waiver of defects “(a) The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.” There can be no question, we think, but that these provisions of the Judicial Code apply to suits in admiralty as well as to other cases in the courts. Untersinger v. United States, 2 Cir., 181 F.2d 953; Orr v. United States, 2 Cir., 174 F.2d 577; Arrowhead Co. Inc., v. The Aimee Lykes, D.C., 101 F.Supp. 895; Crawford v. Ann Arbor Railroad Co., D.C., 94 F.Supp. 29; St. Paul Fire & Marine Ins. Co. v. American Mail Line Ltd., D.C., 94 F.Supp. 28. The Supreme Court, in Ex parte Collett, 337 U.S. 55, 58, 69 S.Ct. 944, 93 L.Ed. 1207, held that the words “any civil action” in 28 U.S.C. § 1404(a) were used without qualification and applied to all civil actions. As the suits were in admiralty, they might have been instituted in any district court of the United States. Jurisdiction over the person in suits in personam can be obtained, however, only by service of process within the district and jurisdiction in rem can be obtained only by seizure of property therein, and Admiralty Rule 22, 28 U.S.C. requires that libel in in rem proceedings allege that the property is within the district. It is proper to institute a suit in admiralty in a district in which there is no person who can be served with process and no property which can be seized, if it is made to appear that property which can be seized under process therein is expected to be within the district short ly; and .when suit is so instituted it constitutes" } ]

[ { "docid": "19062577", "title": "", "text": "[Title 28]. It governs the time for acts to be done and proceedings to be had in bankruptcy cases and, to that extent, supersedes § 31 of the Act.” Part 2, Collier, Pamphlet Ed., Rule 906 at 267. (Emphasis supplied). Second, in an appendix to House Report No. 95-595, U.S. Code Cong. & Admin.News 1978, p. 5787, which accompanied the House version of the Bankruptcy Reform Act, there are listed 322 “matters that will be dealt with by the Rules of Bankruptcy Procedure . . .” Item 299 on this list includes “All matters that are treated with under the Federal Rules of Civil Procedure”. House Report No. 95-595, 95th Cong., 1st Sess. (1977) 293, 307, U.S.Code Cong. & Admin.News 1978, pp. 6250, 6264. Third, a leading authority on bankruptcy law states that “[i]n computing the time [under § 547], Rule 906(a), which provides for the application of Federal Rule of Civil Procedure 6(a) governs, so that the first day is excluded, the last day included”. 4 Collier on Bankruptcy (15th Ed.) ¶ 547.28 at 547-102. Last, the very language of § 547 states that a prohibited transfer must occur “on or within 90 days before the date of the filing of the petition”. (Emphasis supplied). From the foregoing, I find that Congress did not reenact a provision comparable to said § 31 in the Bankruptcy Code because § 31 had already been superseded under the Bankruptcy Act by Bankruptcy Rule 906(a) and Bankruptcy Rule 906(a) continues in effect under the Bankruptcy Code. The legislative history embodied in the House Report, supra, further illustrates the lack of need of a separate time computation section when it states that, unlike the Bankruptcy Act, the new statute contains very little of a procedural nature and that matters treated under the Federal Rules of Civil Procedure will be left to the Bankruptcy Rules. The terms of § 547 limiting the statutory period to the 90 days before the date of filing serve further to clarify that one terminal date is to be excluded. The Court holds that the omission of a separate section" } ]

[ { "docid": "1164625", "title": "", "text": "MEMORANDUM AND ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT CLIVE W. BARE, Bankruptcy Judge. At issue is whether calculation of the 90-day period of 11 U.S.C.A. § 547(b)(4) (1979) should be determined by counting backward from the filing date of the debt- or’s petition or forward from the effective date of the transfer challenged as preferential. The trustee contends that Bankruptcy Rule 9006(a) is applicable and that the rule requires a forward count from the date of the transfer. Defendant maintains that the 90-day period must be determined by counting backward, commencing the count with the day before the filing of the debtor’s petition. Further, defendant maintains that Bankruptcy Rule 9006(a) cannot be applied to alter the 90-day period of Code § 547(b)(4) regardless of whether the proper method of computation is by counting backward or forward. I Since the facts are undisputed the issue is before the court on defendant’s motion for summary judgment. The debtor’s bankruptcy petition was filed on October 1,1979. Previous thereto, on May 10,1979, the debt- or issued a check to defendant in the amount of $113,350.91 as payment for steel shipped in February 1979. Debtor’s check, however, was not delivered to the defendant until June 29, 1979. The check was deposited on the date of delivery and paid by the drawee bank, First National Bank of Sullivan County, on July 2,1979. The trustee’s complaint, although not filed until August 17, 1983, is within the limitations period of 11 U.S.C.A. § 546(a) (1979). Contending that the $113,350.91 payment to defendant is a preference avoidable under 11 U.S.C.A. § 547(b) (1979), the trustee seeks judgment in an amount equalling the payment plus interest and costs. Several defenses have been asserted. On October 27, 1983, defendant filed a motion for summary judgment on the grounds that the transfer which the trustee seeks to avoid occurred at least 91 days prior to the filing of the debtor’s petition. Defendant’s computation is based on a count backward from, but excluding, Monday, October 1, 1979, the petition date, to July 2, 1979, the effective date of the transfer. In contradistinction," }, { "docid": "1164632", "title": "", "text": "superseded section 31 of the Bankruptcy Act of 1898, the opinion recites: The event here (from which the period of time runs) is the filing of the bankruptcy petition, not the transfer of the bankrupt’s property. The statute defines the preferential-transfer period as being “within four months before the filing” of the bankruptcy petition; thus, the period should be caculated by excluding the day on which the petition was filed and counting back so as to include the corresponding day of the fourth preceding month. In re B & M Contractors, Inc., 2 B.R. at 112. Accord Larson v. Olympic Finance Co., 21 B.R. 264, 267 n. 2 (Bkrtcy.D.Utah 1982); Sid Kumines, Inc. v. Wolf, 13 B.R. 167, 169 n. 4 (Bkrtcy.D.Mass.1981), aff’d sub nom. Harbor Nat’l Bank v. Sid Kumins, Inc., 696 F.2d 9 (1st Cir.1982). Disagreeing with the court in In re Mailbag Int’l Inc., supra, this court believes that the language of Code § 547(b)(4) suggests a backward count. When computing the 90-day preferential period this court instinctively begins its summation with the number of days, less one, which have elapsed in the month of filing, adds the number of days in the month preceding the filing month, and continues in inverse chronological order. The filing date is the focal date from which the computation should commence. Furthermore, although 28 U.S.C.A. § 2075 (1982) authorizes prescription by the Supreme Court of bankruptcy rules of procedure, the statute specifically provides: “Such rules shall not abridge, enlarge, or modify any substantive right.” Application of Bankruptcy Rule 9006(a) in the manner advocated by the trustee could impermissi-bly extend the 90-day preference period by enlarging a bankruptcy trustee's rights under Code § 547(b). Suppose that a Saturday is the 90th day counting forward from the effective date of the transfer in a case where the debtor’s petition is filed on the following Monday. Accepting the trustee’s argument, a transfer occurring 92 calendar days preceding the petition date could be avoided. Rust v. Quality Car Corral, Inc., 614 F.2d 1118 (6th Cir.1980) also supports defendant’s position that the 90-day preference period may" }, { "docid": "1164627", "title": "", "text": "the trustee argues that: (i) the 90-day period should be computed by counting forward from July 2,1979; (ii) the 90th calendar day after July 2, 1979, is Sunday, September 30,1979; (iii) in accordance with Bankruptcy Rule 9006(a), since a Sunday is not included if it is the last day of the period under computation, October 1, 1979, is the 90th day from July 2, 1979. II Section 547(b) of Title 11, United States Code, enacts in material part: Except as provided in subsection (c) of this section, the trustee may avoid any transfer of property of the debtor— (4) made— (A) on or within 90 days before the date of the filing of the petition .... Bankruptcy Rule 9006 recites in relevant part: TIME (a) Computation. In computing any period of time prescribed or allowed by these rules ... or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. Application of the rule in computing the 90-day period of Code § 547(b)(4)(A) appears to be required under the very terms of the rule. Although considerable authority for the applicability of this rule exists, there is a division on the issue of the incep-tive date and direction of the count in calculating the 90-day period. The 90-day period is measured from the date of filing a petition, rather than from the date of subsequent activities in the bankruptcy process. The initial filing date typically controls even if there is a subsequent amendment of the petition. 2 Norton Bankruptcy Law and Practice § 32.11 (1981). Contra 4 Collier on Bankruptcy ¶ 547.28 (15th ed. 1983): [T]he trustee has the burden of proving that the challenged transfer was effected within the prescribed 90-day period. The actual date of perfection of" }, { "docid": "22026331", "title": "", "text": "he was entitled to judgment as a matter of law. The bankruptcy court granted his motion avoiding any liens created by the first judgment and avoided the remaining liens created by the second judgment with the exception of the lien arising from an abstract of judgment filed in Contra Costa County. RG 80-21 does not contest the bankruptcy court’s decision as to the first judgment and appeals only that portion of the lower court’s ruling holding the abstract recorded in Napa County on the 91st day as a voidable preferential transfer, due to the fact that counting backwards from the date of the petition the 90th day was a Saturday. RG 80-21 timely filed its notice of appeal. II.ISSUE Whether Bankruptcy Rule 9006(a) may be utilized to extend the 90 day preference period of § 547(b)(4)(A) when the 90th day falls on a Saturday, Sunday or a legal holiday. III.STANDARD OF REVIEW A grant of summary judgment is reviewed de novo. Halverson v. Skagit County, 42 F.3d 1257, 1260 (9th Cir.1994); In re Zelis, 161 B.R. 469, 472 (9th Cir. BAP 1993). An appellate court must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the trial court correctly applied the relevant substantive law. Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994). IV.DISCUSSION The issue before us is whether the 90 day reach back period of § 547(b)(4)(A) may be extended by application of Rule 9006(a). Section 547(b)(4)(A) provides: [T]he trustee may avoid any transfer of an interest of the debtor in property— (4) made— (A) on or within 90 days before the date of the filing of the petition; 11 U.S.C. § 547(b)(4)(A). Rule 9006(a) provides in relevant part: (a) Computation. In computing any period of time prescribed or allowed by these rules, by the local rules, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last" }, { "docid": "1164629", "title": "", "text": "the transfer controls .... In computing the time, Rule 906(a) [predecessor of current Rule 9006(a)] governs. The rule provides for the application of Federal Rule of Civil Procedure 6(a), so that the first day is excluded, the last day included. Accordingly, the day the alleged transfer is effected will not be counted, but the day of the filing of the petition will be counted. Courts are also divided on the issue. See Meister v. State Nat’l Bank (In re Mailbag Int’l Inc.), 28 B.R. 905, 910 (Bkrtcy.D.Conn.1983); Contra Larson v. Olympic Finance Co., 21 B.R. 264, 267 n. 2 (Bkrtcy.D.Utah 1982); Sid Kumines, Inc. v. Wolf, 13 B.R. 167, 169 n. 4 (Bkrtcy.D.Mass.1981), aff’d sub nom. Harbor Nat’l Bank v. Sid Kumins, Inc., 696 F.2d 9 (1st Cir.1982); Roper v. Hardeman (In re B & M Contractors, Inc.), 2 B.R. 110 (Bkrtcy.N.D.Ala.1979). The debtor in Meister v. State Nat’l Bank, supra, Mailbag International, Inc. (Mailbag) filed its bankruptcy petition on August 1, 1980. Prior thereto, on April 30, 1980, Mailbag issued and obtained certification of a check for $50,000.00 payable to State National Bank of Connecticut. The $50,000.00 check was delivered to State Bank on May 2, 1980, and paid on May 5, 1980. After determining that the date of delivery was the effective date of the transfer, the court addressed the question whether to count backward from the filing date of the petition or forward from the date of transfer. Since there were 90 days in the period between May 3rd and July 31st, ex- eluding the terminal dates of May 2nd and August 1st, counting forward would result in dismissal of the trustee’s complaint. However, because May 3,1980, was a Saturday, a backward count under former Bankruptcy Rule 906(a), the predecessor of Bankruptcy Rule 9006(a), would have extended the preference period to include May 2, 1980. After noting its concurrence will Bell v. West, 44 F.2d 161 (4th Cir.1930) (exclude date of transfer and include petition date in calculating the four-month preference period of section 60 of the Bankruptcy Act of 1898), the court considered Code § 547:" }, { "docid": "1164630", "title": "", "text": "a check for $50,000.00 payable to State National Bank of Connecticut. The $50,000.00 check was delivered to State Bank on May 2, 1980, and paid on May 5, 1980. After determining that the date of delivery was the effective date of the transfer, the court addressed the question whether to count backward from the filing date of the petition or forward from the date of transfer. Since there were 90 days in the period between May 3rd and July 31st, ex- eluding the terminal dates of May 2nd and August 1st, counting forward would result in dismissal of the trustee’s complaint. However, because May 3,1980, was a Saturday, a backward count under former Bankruptcy Rule 906(a), the predecessor of Bankruptcy Rule 9006(a), would have extended the preference period to include May 2, 1980. After noting its concurrence will Bell v. West, 44 F.2d 161 (4th Cir.1930) (exclude date of transfer and include petition date in calculating the four-month preference period of section 60 of the Bankruptcy Act of 1898), the court considered Code § 547: Section 547 provides little basis for deciding from which point to compute the preference period. In pertinent part, that section merely states that certain transactions made on or within ninety days before the filing of the petition are avoidable as preferences. Rule 6(a), however, keys the computation to the happening of, among other things, an act. In this proceeding, the focus of the court is drawn to a transfer. That is the act from which the “designated period of time begins to run.” Moreover, the language of Rule 6(a) is consistent with the application of a forward count. One does not usually think of a period of time as beginning to run backwards. Meister v. State Nat’l Bank (In re Mailbag Int'l, Inc.), 28 B.R. 905, 910 (Bkrtcy.D.Conn.1983). A contrary view is expressed in Roper v. Hardeman (In re B & M Contractors, Inc.), 2 B.R. 110 (Bkrtcy.N.D.Ala.1979), a pre-Code case which is nonetheless apposite. In question was whether the bankrupt’s trustee could avoid a lien against a motor vehicle. Observing that Bankruptcy Rule 906(a)" }, { "docid": "1164628", "title": "", "text": "be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. Application of the rule in computing the 90-day period of Code § 547(b)(4)(A) appears to be required under the very terms of the rule. Although considerable authority for the applicability of this rule exists, there is a division on the issue of the incep-tive date and direction of the count in calculating the 90-day period. The 90-day period is measured from the date of filing a petition, rather than from the date of subsequent activities in the bankruptcy process. The initial filing date typically controls even if there is a subsequent amendment of the petition. 2 Norton Bankruptcy Law and Practice § 32.11 (1981). Contra 4 Collier on Bankruptcy ¶ 547.28 (15th ed. 1983): [T]he trustee has the burden of proving that the challenged transfer was effected within the prescribed 90-day period. The actual date of perfection of the transfer controls .... In computing the time, Rule 906(a) [predecessor of current Rule 9006(a)] governs. The rule provides for the application of Federal Rule of Civil Procedure 6(a), so that the first day is excluded, the last day included. Accordingly, the day the alleged transfer is effected will not be counted, but the day of the filing of the petition will be counted. Courts are also divided on the issue. See Meister v. State Nat’l Bank (In re Mailbag Int’l Inc.), 28 B.R. 905, 910 (Bkrtcy.D.Conn.1983); Contra Larson v. Olympic Finance Co., 21 B.R. 264, 267 n. 2 (Bkrtcy.D.Utah 1982); Sid Kumines, Inc. v. Wolf, 13 B.R. 167, 169 n. 4 (Bkrtcy.D.Mass.1981), aff’d sub nom. Harbor Nat’l Bank v. Sid Kumins, Inc., 696 F.2d 9 (1st Cir.1982); Roper v. Hardeman (In re B & M Contractors, Inc.), 2 B.R. 110 (Bkrtcy.N.D.Ala.1979). The debtor in Meister v. State Nat’l Bank, supra, Mailbag International, Inc. (Mailbag) filed its bankruptcy petition on August 1, 1980. Prior thereto, on April 30, 1980, Mailbag issued and obtained certification of" }, { "docid": "11238652", "title": "", "text": "Similarly, the Ninth Circuit has held that the computation rule does not “enlarge” statutory time periods, but merely provides a method for computation. United States v. Cia Luz Stearica, 181 F.2d 695, 696 (9th Cir.1950). Because the authority on which Bergel rests is questionable at best and because § 547 does not create any substantive rights, this Court declines to follow Bergel, and holds that the computation method set forth in Rule 9006(a) applies to the § 547 preference period. Bank of Maui v. Estate Analysis, Inc., 904 F.2d 470, 472 (9th Cir.1990) (district courts are not bound by BAP decisions); see Dutcher v. Wright, 94 U.S. 553, 561, 24 L.Ed. 130 (1876) (applying a computation rule to the preference period in bankruptcy); In re Prior, 176 B.R. 485, 496 & fn. 9 (Bankr.S.D.Ill.1995); J.A.S. Markets, 113 B.R. at 197-98 (Rule 9006(a) extends the preference period from Saturday to the next day, counting backwards, Friday). B. The Preference Period is Computed by Counting Backwards MBNA further argues that the preference period set forth in § 547 should be calculated by counting forward from the date of the transfer instead of backward from the date of the petition filing. The Trustee disagrees. Rule 9006(a) provides that the day of the “event” from which the period of time begins shall not be counted in the computation of time. And, section 547 provides that a transfer may be avoided if made “on or within 90 days before the date of the filing of the petition.” Because the “event” contemplated by § 547 is the date of filing the bankruptcy petition, and not the date of the transfer, it is proper to count backward from that date, excluding the date of filing the petition in the preference period. See In re Nelson, 959 F.2d 1260, 1266-67 (3rd Cir.1992) (finding that the focal point of § 547 is date of filing petition and applying Rule 9006(a) to preference period). Supreme Court precedent and the majority of cases that have addressed the issue agree. See Dutcher v. Wright, 94 U.S. 553, 24 L.Ed. 130 (1876) (counting" }, { "docid": "18586361", "title": "", "text": "day period of 11 U.S.C. § 547(b)(4)(A). Under rule 9006, the date of the transfer is excluded, but the date of the petition is included. In re Grimaldi, 3 B.R. 533 (Bkrtcy.Conn.1980); In re Mailbag International, Inc., 28 B.R. 905, 10 B.C.D. 496 (Bkrtcy.Conn.1983); Harbor National Bank of Boston v. Sid Kumins, Inc., 696 F.2d 9 (1st Cir.1982); Bell v. West, 44 F.2d 161 (4th Cir.1930); 4 Collier on Bankruptcy, para. 547.28 at 547-109 (15th ed. 1982). Consequently, a transfer made on January 31, 1983 would be outside of the ninety (90) day period but transfers made on or after February 1, 1983 would be included. Under 11 U.S.C. § 547(e)(2)(A), a transfer is considered to be made when it “takes effect” between the transferor and the transferee if the transfer is “perfected” within ten (10) days. The Defendants contend that the judgment lien was “made” on January 31, 1983 because the judgment lien “took effect” between the Defendants and the Debtor on January 31, 1983 when the consent judgment was executed and was “perfected” within the ten (10) day grace period by docketing on February 7, 1983. The consent judgment, they argue, was a contract creating the lien. Under North Carolina law, however, no lien is created by a judgment until the judgment is docketed. North Carolina General Statute § 1-234 says that “upon filing a judgment roll upon a judgment affecting the title of real property ... it shall be docketed in the judgment docket of the Superior Court ... and is a lien on the real property in the county where the same is docketed of every person against whom any such judgment is rendered, and which he has at the time of the docketing thereof in the county in which such real property is situated. .. . ” Mere rendition of a judgment does not constitute a lien. Slocumb v. R.R., 165 N.C. 338, 81 S.E. 335 (1914); Osborne v. Board of Education, 207 N.C. 503, 177 S.E. 642 (1935). A judgment lien in North Carolina is neither created nor perfected until it is docketed. There" }, { "docid": "1164626", "title": "", "text": "to defendant in the amount of $113,350.91 as payment for steel shipped in February 1979. Debtor’s check, however, was not delivered to the defendant until June 29, 1979. The check was deposited on the date of delivery and paid by the drawee bank, First National Bank of Sullivan County, on July 2,1979. The trustee’s complaint, although not filed until August 17, 1983, is within the limitations period of 11 U.S.C.A. § 546(a) (1979). Contending that the $113,350.91 payment to defendant is a preference avoidable under 11 U.S.C.A. § 547(b) (1979), the trustee seeks judgment in an amount equalling the payment plus interest and costs. Several defenses have been asserted. On October 27, 1983, defendant filed a motion for summary judgment on the grounds that the transfer which the trustee seeks to avoid occurred at least 91 days prior to the filing of the debtor’s petition. Defendant’s computation is based on a count backward from, but excluding, Monday, October 1, 1979, the petition date, to July 2, 1979, the effective date of the transfer. In contradistinction, the trustee argues that: (i) the 90-day period should be computed by counting forward from July 2,1979; (ii) the 90th calendar day after July 2, 1979, is Sunday, September 30,1979; (iii) in accordance with Bankruptcy Rule 9006(a), since a Sunday is not included if it is the last day of the period under computation, October 1, 1979, is the 90th day from July 2, 1979. II Section 547(b) of Title 11, United States Code, enacts in material part: Except as provided in subsection (c) of this section, the trustee may avoid any transfer of property of the debtor— (4) made— (A) on or within 90 days before the date of the filing of the petition .... Bankruptcy Rule 9006 recites in relevant part: TIME (a) Computation. In computing any period of time prescribed or allowed by these rules ... or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall" }, { "docid": "11238653", "title": "", "text": "547 should be calculated by counting forward from the date of the transfer instead of backward from the date of the petition filing. The Trustee disagrees. Rule 9006(a) provides that the day of the “event” from which the period of time begins shall not be counted in the computation of time. And, section 547 provides that a transfer may be avoided if made “on or within 90 days before the date of the filing of the petition.” Because the “event” contemplated by § 547 is the date of filing the bankruptcy petition, and not the date of the transfer, it is proper to count backward from that date, excluding the date of filing the petition in the preference period. See In re Nelson, 959 F.2d 1260, 1266-67 (3rd Cir.1992) (finding that the focal point of § 547 is date of filing petition and applying Rule 9006(a) to preference period). Supreme Court precedent and the majority of cases that have addressed the issue agree. See Dutcher v. Wright, 94 U.S. 553, 24 L.Ed. 130 (1876) (counting backwards and applying computation rule); Nelson, 959 F.2d at 1266-67 (preference period should be counted backwards from date of bankruptcy filing); In re Momentum Computer Systems, Int’l., 66 B.R. 512, 513 (N.D.Cal.1986) (counting backwards from date of petition); In re Prior, 176 B.R. 485, 497 (Bankr.S.D.Ill.1995) (following “majority view” and counting backwards and applying Rule 9006(a) to preference period); In re Levinson, 128 B.R. 365, 367 (Bankr.S.D.N.Y.1991) (counting backwards to compute preference period); J.A.S. Markets, 113 B.R. at 197-98 (“the count is backward from the date of filing”). CONCLUSION Rule 9006(a) should be applied when computing the preference period under § 547. , It is proper to calculate the preference period by counting backwards from the date of the filing of the bankruptcy petition. In this ease, the 90-day preference period ended on a Saturday and thus must be extended one day to the previous Friday, the day on which the debtor made its transfer. The Trustee, therefore, may avoid the transfer. The decision of the Bankruptcy Court is REVERSED. The March 8,1996 transfer is" }, { "docid": "22203580", "title": "", "text": "held that in computing the preference period the date of filing the bankruptcy petition should be excluded, and the 90 day period calculated beginning with the day prior to filing as the first day and counting back until the 90th day. Cf. 4 COLLIER ON BANKRUPTCY, supra If 547.28, at 547-109; 2 W. NORTON supra § 32.11. By applying the Larson computation and counting back, the preference period extends to June 18, 1981. The undisputed facts show that the July checks were both received by the defendants and honored on or after July 10, 1981. The monthly payments to investors were made by the “payable companies,” i.e., Accounting Services Company, Payable Accounting Company, and Tonder Payable Service Company, which were intermediaries through which the Clearing Houses paid their investors. Orders for relief were granted to the debtors herein under Chapter 11 as follows: Debtor Date Relief Granted Independent Clearing House September 16, 1981 Debtor Date Relief Granted Universal Clearing House September 16, 1981 Accounting Services Company December 17, 1981 Payable Accounting Company April 29, 1982 Tonder Payable Service Company August 16, 1982 A potential issue exists as to whether the July payments were made within 90 days of the filing of the bankruptcy petitions, since orders for relief were not entered against the payable companies until outside of the 90 day period. However, the undisputed facts show that the funds transferred to defendants were at all times owned and under the custody and control of Independent Clearing House and Universal Clearing House. Affidavit of Ron N. Bag-ley in Support of Trustee’s Amended Motion for Summary Judgment at II 22 (Feb. 24, 1984). Mere circuity of arrangement will not save a transfer which effects a preference from being invalid as such. Dean v. Davis, supra, 242 U.S. at 443. See National Bank of Newport v. National Herkimer County Bank, 225 U.S. 178, 184, 32 S.Ct. 633, 635, 56 L.Ed. 1042 (1912); Dodson v. Lumpkin, 205 F.Supp. 352, 355 (W.D.Va.1962); 4 COLLIER ON BANKRUPTCY, supra, ¶ 547.09, at 547-33 to 547-34; In re Stop-N-Go of Elmira, Inc., 30 B.R. 721, 726 (Bkrtcy.W.D.N.Y.1983)" }, { "docid": "22203579", "title": "", "text": "overwhelming majority of courts have held that a transfer for purposes of determining whether there has been a preference occurs when the check is presented for payment and honored. See, e.g., Klein v. Tabatchnick, 610 F.2d 1043, 1049 (2d Cir.1979); In re Naudain, Inc., 32 B.R. 871, 874 (Bkrtcy.E.D.Pa.1983); Matter of Ellison, 31 B.R. 545, 547 (Bkrtcy.M.D.Ga.1983); In re Moran Air Cargo, Inc., 30 B.R. 406, 408 (Bkrtcy.D.R.I.1983); In re Mailbag International, Inc., 28 B.R. 905, 907, 10 B.C.D. 496 (Bkrtcy.D.Conn.1983); In re Skinner Lumber Co., 27 B.R. 669, 670 (Bkrtcy.D.S.C.1982); Matter of Advance Glove Mfg. Co., 25 B.R. 521, 525, 9 B.C.D. 1395 (Bkrtcy.E.D.Mich.1982); In re Fabric Buys of Jericho, Inc., 22 B.R. 1010, 1011 (Bkrtcy.S.D.N.Y.1982); In re Ardmore Sales Co., Inc., 22 B.R. 911, 913 (Bkrtcy.E.D.Pa.1982); In re Mindy’s, Inc., 17 B.R. 177, 179, 5 C.B.C.2d 1451 (Bkrtcy.S.D.Ohio 1982); In re Sportsco, Inc., 12 B.R. 34, 35-36, 7 B.C.D. 1025 (Bkrtcy.D.Ariz.1981); Matter of Duffy, supra, 3 B.R. at 265. In In re Larson, 21 B.R. 264, 267 n. 2 (Bkrtcy.D.Utah 1982), this Court held that in computing the preference period the date of filing the bankruptcy petition should be excluded, and the 90 day period calculated beginning with the day prior to filing as the first day and counting back until the 90th day. Cf. 4 COLLIER ON BANKRUPTCY, supra If 547.28, at 547-109; 2 W. NORTON supra § 32.11. By applying the Larson computation and counting back, the preference period extends to June 18, 1981. The undisputed facts show that the July checks were both received by the defendants and honored on or after July 10, 1981. The monthly payments to investors were made by the “payable companies,” i.e., Accounting Services Company, Payable Accounting Company, and Tonder Payable Service Company, which were intermediaries through which the Clearing Houses paid their investors. Orders for relief were granted to the debtors herein under Chapter 11 as follows: Debtor Date Relief Granted Independent Clearing House September 16, 1981 Debtor Date Relief Granted Universal Clearing House September 16, 1981 Accounting Services Company December 17, 1981 Payable Accounting Company April 29, 1982" }, { "docid": "1191114", "title": "", "text": "also not preferences. One remaining check drawn on April 20, 1984 remains at issue because it was written prior to the ninety-day period but not honored by the bank until April 27, 1984, within the ninety-day period. Therefore, under the counts in the Trustee’s complaint alleging preferential transfers, basically four issues remain for this court’s determination. 1. Under Counts I, II and V, whether the debtor was in fact insolvent on the dates of the transfers. 2. Under Counts I and V, whether Boehmer, as an insider, had reasonable cause to believe that the debtor was insolvent. 3. Under Counts I, II and V whether the transfers made by the debtor to Boeh-mer enabled Boehmer to receive more than he would have as a creditor in the Chapter 7 proceeding if the transfers had not been made and Boehmer received payment of his claim as provided by the Bankruptcy Code. 4. Under Count II, whether the payment by the debtor to Boehmer by check dated April 20, 1984, but cashed on April 27, 1984 falls within the 90 day preference period. Section 547(b)(3) requires that the debtor be insolvent at the time of the transfer. In response to the problems engendered by requiring proof of insolvency under the Act, Congress included Section 547(f) in the Bankruptcy Code, which states: (f) For the purpose of this section, the debtor is presumed to have been insolvent on and during the 90 days immediately preceding the date of the filing of the petition. 11 U.S.C. § 547(f). However, the presumption of insolvency applies only during the ninety days immediately preceding the date of the filing of the petition. Hence, because the Trustee, in Counts I and Y, is challenging transfers to an insider that occurred more than ninety days before the filing of the petition, the presumption is of no apparent circumstance. In re Camp Rockhill, Inc., 12 B.R. 829, 833 (Bankr.E.D.Pa.1981). Therefore, the Trustee must establish the debtor’s insolvency on the dates the transfers outside the ninety-day period were made. Id. Insolvency is defined by § 101(26) of the Code, which states:" }, { "docid": "1164631", "title": "", "text": "Section 547 provides little basis for deciding from which point to compute the preference period. In pertinent part, that section merely states that certain transactions made on or within ninety days before the filing of the petition are avoidable as preferences. Rule 6(a), however, keys the computation to the happening of, among other things, an act. In this proceeding, the focus of the court is drawn to a transfer. That is the act from which the “designated period of time begins to run.” Moreover, the language of Rule 6(a) is consistent with the application of a forward count. One does not usually think of a period of time as beginning to run backwards. Meister v. State Nat’l Bank (In re Mailbag Int'l, Inc.), 28 B.R. 905, 910 (Bkrtcy.D.Conn.1983). A contrary view is expressed in Roper v. Hardeman (In re B & M Contractors, Inc.), 2 B.R. 110 (Bkrtcy.N.D.Ala.1979), a pre-Code case which is nonetheless apposite. In question was whether the bankrupt’s trustee could avoid a lien against a motor vehicle. Observing that Bankruptcy Rule 906(a) superseded section 31 of the Bankruptcy Act of 1898, the opinion recites: The event here (from which the period of time runs) is the filing of the bankruptcy petition, not the transfer of the bankrupt’s property. The statute defines the preferential-transfer period as being “within four months before the filing” of the bankruptcy petition; thus, the period should be caculated by excluding the day on which the petition was filed and counting back so as to include the corresponding day of the fourth preceding month. In re B & M Contractors, Inc., 2 B.R. at 112. Accord Larson v. Olympic Finance Co., 21 B.R. 264, 267 n. 2 (Bkrtcy.D.Utah 1982); Sid Kumines, Inc. v. Wolf, 13 B.R. 167, 169 n. 4 (Bkrtcy.D.Mass.1981), aff’d sub nom. Harbor Nat’l Bank v. Sid Kumins, Inc., 696 F.2d 9 (1st Cir.1982). Disagreeing with the court in In re Mailbag Int’l Inc., supra, this court believes that the language of Code § 547(b)(4) suggests a backward count. When computing the 90-day preferential period this court instinctively begins its summation with" }, { "docid": "15853922", "title": "", "text": "the Federal Rules of Civil Procedure for the computation of time in a bankruptcy case. The defendant further contends that if Fed.R.Civ.P. 6 is applicable, then the computation should begin from the date of the transfer. The plaintiff, on the other hand, argues that Fed.R.Civ.P. 6 is applicable and the days should be counted backwards from the date the petition was filed. If Fed.R.Civ.P. 6 is ignored, then the transfer on May 2, 1980 fell outside the preference period. The same result is reached if Rule 6 is applied and the days are counted forwards. However, if Rule 6 is applied and a backward count is employed, then the ninetieth day (May 3) would fall on a Saturday and because of the provision in Rule 6 relating to Saturdays, Sundays and legal holidays, the preference period would extend to May 2. In In re Grimaldi, the bankruptcy court in this district concluded that Bankruptcy Rule 906(a) was applicable to the computation of the preference period prescribed by section 547. 3 B.R. 533, 6 B.C.D. 241 (1981). Accord, Harbor National Bank of Boston v. Sid Kumins, Inc., 696 F.2d 9 (1st Cir.1982); In re Larson, 21 B.R. 264 (Bkrtcy.D.Utah 1982); In re Utility Stores, Inc., 12 B.R. 170 (Bkrtcy.N.D.Ill.1981); 4 Collier On Bankruptcy ¶ 547.28 at 547-109 (15th ed. 1982); 2 Norton Bankr. L. & Prac. § 32.11 at Part 32 — page 35 (1981). The court is unaware of any decision which holds that Bankruptcy Rule 906(a) does not apply to section 547. While the applicability of Bankruptcy Rule 906(a) is well established, “there is some disagreement as to which of the two dates [the date of the petition and the date of the transfer] is to be included and which excluded” pursuant to Rule 6(a). Harbor v. National Bank of Boston v. Sid Kumins, Inc., supra, 696 F.2d at 10. Compare Bell v. West, 44 F.2d 161 (4th Cir.1930) (excluding date of the transfer) with In re B & M Contractors, Inc., 2 B.R. 110 (Bkrtcy.N.D.Ala.1979) (excluding date of the petition). I believe that the position adopted in Bell" }, { "docid": "18586360", "title": "", "text": "for the Court to find that the Debtor was insolvent ninety (90) days prior to bankruptcy and the Defendants’ motion was denied. The Court did, however, find at the close of the Debtor’s evidence that the Defendants did not have reasonable cause to believe the Debtor was insolvent and the Defendants’ motion to dismiss was granted as to transfers made more than ninety (90) days preceding May 2,1983, the date of the Debtor’s petition. The Defendants are “affiliates” of the Debtor (11 U.S.C. § 101(2)(A)) by virtue of their ownership together of thirty (30%) per cent of the Debtor’s voting stock. As affiliates, the Defendants are “insiders” of the Debtor (11 U.S.C. § 101(25)(E)). Nevertheless, because the Defendants did not have reasonable cause to believe that the Debtor was insolvent, transfers made outside of the ninety (90) day period immediately preceding bankruptcy would not be preferential as to them (11 U.S.C. § 547(b)(4)(B)). Were the transfers made outside of the ninety (90) day preference period? Bankruptcy Rule 9006 is applicable when computing the ninety (90) day period of 11 U.S.C. § 547(b)(4)(A). Under rule 9006, the date of the transfer is excluded, but the date of the petition is included. In re Grimaldi, 3 B.R. 533 (Bkrtcy.Conn.1980); In re Mailbag International, Inc., 28 B.R. 905, 10 B.C.D. 496 (Bkrtcy.Conn.1983); Harbor National Bank of Boston v. Sid Kumins, Inc., 696 F.2d 9 (1st Cir.1982); Bell v. West, 44 F.2d 161 (4th Cir.1930); 4 Collier on Bankruptcy, para. 547.28 at 547-109 (15th ed. 1982). Consequently, a transfer made on January 31, 1983 would be outside of the ninety (90) day period but transfers made on or after February 1, 1983 would be included. Under 11 U.S.C. § 547(e)(2)(A), a transfer is considered to be made when it “takes effect” between the transferor and the transferee if the transfer is “perfected” within ten (10) days. The Defendants contend that the judgment lien was “made” on January 31, 1983 because the judgment lien “took effect” between the Defendants and the Debtor on January 31, 1983 when the consent judgment was executed and was “perfected”" }, { "docid": "15853923", "title": "", "text": "(1981). Accord, Harbor National Bank of Boston v. Sid Kumins, Inc., 696 F.2d 9 (1st Cir.1982); In re Larson, 21 B.R. 264 (Bkrtcy.D.Utah 1982); In re Utility Stores, Inc., 12 B.R. 170 (Bkrtcy.N.D.Ill.1981); 4 Collier On Bankruptcy ¶ 547.28 at 547-109 (15th ed. 1982); 2 Norton Bankr. L. & Prac. § 32.11 at Part 32 — page 35 (1981). The court is unaware of any decision which holds that Bankruptcy Rule 906(a) does not apply to section 547. While the applicability of Bankruptcy Rule 906(a) is well established, “there is some disagreement as to which of the two dates [the date of the petition and the date of the transfer] is to be included and which excluded” pursuant to Rule 6(a). Harbor v. National Bank of Boston v. Sid Kumins, Inc., supra, 696 F.2d at 10. Compare Bell v. West, 44 F.2d 161 (4th Cir.1930) (excluding date of the transfer) with In re B & M Contractors, Inc., 2 B.R. 110 (Bkrtcy.N.D.Ala.1979) (excluding date of the petition). I believe that the position adopted in Bell v. West wherein the court began the time computation from the date of the transfer should be followed under Code § 547(b)(4)(A). See 4 Collier on Bankruptcy, supra; 2 Norton Bankr.L. & Prac., supra. Section 547 provides little basis for deciding from which point to compute the preference period. In pertinent part, that section merely states that certain transactions made on or within ninety days before the filing of the petition are avoidable as preferences. Rule 6(a), however, keys the computation to the happening of, among other things, an act. In this proceeding, the focus of the court is drawn to a transfer. That is the act from which the “designated period of time begins to run.” Moreover, the language of Rule 6(a) is consistent with the application of a forward count. One does not usually think of a period of time as beginning to run backwards. Additionally, a forward count satisfies the purpose of the rule that is designed to govern the time in which something must be done. Under section 547 a transfer" }, { "docid": "8574432", "title": "", "text": "this Adversary Proceeding seeking to recover a total of nine prepetition payments. The Court finds that the first payment at issue in the amount of $107, 042.49 , fell outside of the ninety (90) day preference period provided by § 547(b)(4)(A). Terry Manufacturing filed a petition for relief under Chapter 11 of the Bankruptcy Code on July 7, 2003. (Case No. 32063, Doc. 1). It is alleged that Check No. 71400 cleared Terry Manufacturing’s bank on April 7, 2002. (Doc. 1). The Court finds that the 90th day, for purposes of § 547(b)(4)(A), fell on April 8, 2003. Following the majority view, the date of April 8, 2003, is determined by counting backward from the date of the petition, excluding the date of the petition and including the date of the transfer. See In re Levinson (Levinson v. Security Savings Bank, SLA), 128 B.R. 365, 367 (Bankr.S.D.N.Y.1991) (and cases cited therein). At the June 7, 2005 hearing on this matter, the Trustee argued that Federal Rule of Bankruptcy Procedure 9006(a) applies to extend the ninety (90) day preference period of § 547(b)(4)(A). This line of argument does not help the Trustee in this case. Counting backward from the date of the petition, the terminal date is July 7, 2003, which did not fall on a Saturday, Sunday, or a legal holiday. Moreover, the courts that hold that Rule 9006(a) applies to § 547(b)(4)(A) conclude that its use is limited to either excluding the date of the petition or the date of transfer. See In re Greene, 223 F.3d 1064, 1069; In re Levinson, 128 B.R. 365, 367. In these decisions Rule 9006(a) is used to exclude the day of the act, event, or default. An alternative way to analyze the nexus between the two statutes is to conclude that while courts may invoke the principle of Rule 9006(a), that statute itself is inapplicable to § 547(b)(4)(A). See In re Greene, 223 F.3d 1064, 1069 (holding that § 547(b)(4)(A) does not constitute an applicable statute for purposes of Rule 9006(a) and therefore cannot be used to extend the ninety (90) day" }, { "docid": "15853924", "title": "", "text": "v. West wherein the court began the time computation from the date of the transfer should be followed under Code § 547(b)(4)(A). See 4 Collier on Bankruptcy, supra; 2 Norton Bankr.L. & Prac., supra. Section 547 provides little basis for deciding from which point to compute the preference period. In pertinent part, that section merely states that certain transactions made on or within ninety days before the filing of the petition are avoidable as preferences. Rule 6(a), however, keys the computation to the happening of, among other things, an act. In this proceeding, the focus of the court is drawn to a transfer. That is the act from which the “designated period of time begins to run.” Moreover, the language of Rule 6(a) is consistent with the application of a forward count. One does not usually think of a period of time as beginning to run backwards. Additionally, a forward count satisfies the purpose of the rule that is designed to govern the time in which something must be done. Under section 547 a transfer may be avoided, assuming all other elements are satisfied, if within ninety days of the transfer, the debtor or petitioning creditors file a petition. Indeed, a forward count is reinforced by the very extension provision which the plaintiff requests the court to apply. If a transfer happens one day and the eighty eighth day thereafter falls on a Friday, a forward count would assure that the debtor or petitioning creditors could file a petition the following Monday and invoke section 547. Counting backwards, however, any extension would serve no useful purpose, because no act is to be done at the end of the extended time. In sum, a forward count from May 2, 1980 is appropriate, and I accordingly find that the subject transfer occurred outside of the preference period prescribed by section 547(b)(4)(A). Since the absence of any of the elements constituting a preferential transfer is fatal to the trustee’s claim, the defendant’s motion for summary judgment should be, and hereby is, granted. .11 U.S.C. § 547 provides in pertinent part (b) ... [T]he" } ]

[ { "docid": "9486969", "title": "", "text": "had to be made accessible to the handicapped, not just that “special efforts” be made in that direction. . Contrary to defendants’ arguments, plaintiffs’ private right of action under section 504 encompasses a right to allege violations of the 1976 “special efforts” regulations. Those regulations, like the 1979 set, rest on the authority of section 504, as well as on that of section 16 of the UMT Act and section 165(b) of the FAH Act. See 41 Fed.Reg. 18,234 (1976); American Public Transit Association v. Lewis, 655 F.2d 1272, 1273 (D.C.Cir.1981). The fact that the latter two statutes do not provide plaintiffs with a private right of action does not affect the right provided by section 504, or impair the consequent right of action based on its implementing regulations. . By contrast, in cases where the relief requested did not modify some integral aspect of a defendant’s program, courts have ruled that section 504 does require efforts to make the program available to otherwise qualified handicapped persons. See, e.g., Tatro v. Texas, 625 F.2d 557 (5th Cir. 1980) (catheterization for grade school student); Camenisch v. University of Texas, 616 F.2d 127 (5th Cir. 1980) (sign language interpreter for deaf graduate student), vacated as moot, 451 U.S. 390, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981). We recognize that the specific holdings of these cases may have to be reexamined in light of the Supreme Court’s decision in Board of Education v. Rowley, - U.S. -, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982), ruling that the Education for All Handicapped Children (EAHC) Act of 1975, 20 U.S.C. § 1401 et seq. (1976), did not require a local school district to provide a sign-language interpreter for a deaf child already receiving sufficient educational benefits. But we do not beHeve that Rowley impaired the principle of these cases that section 504 of the Rehabilitation Act requires some degree of positive effort to expand the availability of federally funded programs to handicapped persons otherwise qualified to benefit from them. First, the EAHC Act is not structured like the anti-discrimination provision of the Rehabilitation Act. Second," } ]

[ { "docid": "13445824", "title": "", "text": "980 (1979). The Court granted certiorari in a case this past Term to consider the question but instead held that the issues before the Court were moot. University of Texas v. Camenisch, - U.S. -, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981). Several courts of appeals, however, have indicated that a private right of action under § 504 exists. E. g., Baker v. Bell, 630 F.2d 1046, 1055 (5th Cir. 1980); United Handicapped Fed'n v. Andre, 558 F.2d 413 (8th Cir. 1977); Leary v. Crapsey, 566 F.2d 863 (2d Cir. 1977); Lloyd v. Regional Transp. Auth., 548 F.2d 1277 (7th Cir. 1977). But see Simpson v. Reynolds Metals Co., 629 F.2d 1226 (7th Cir. 1980); Trageser v. Libbie Rehab. Center, Inc., 590 F.2d 87 (4th Cir. 1978), cert. denied, 442 U.S. 947, 99 S.Ct. 2895, 61 L.Ed.2d 318 (1979). . 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979). . Id. at 405, 99 S.Ct. at 2366. . Id. at 406, 99 S.Ct. at 2367. . Id. at 409-10, 99 S.Ct. at 2369. . Id. at 412-13, 99 S.Ct. at 2370. . Tatro v. State of Texas, 625 F.2d 557 (5th Cir. 1980) (§ 504 requires school to provide catheterization to four-year old child who would not otherwise be able to participate in school programs but who, with catherization, would be able to realize full benefits of school program; court notes outcome might be different if kidney dialysis were required); Camenisch v. University of Texas, 616 F.2d 127 (5th Cir. 1980), remanded,- U.S. -, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981) (university required under § 504 to provide deaf graduate student with sign-language interpreter). . 655 F.2d 1272 (D.C.Cir. 1981). . Id. at 1277-78. . Id. at 1277-78. . Id. at 1277-78. . Id. (Edwards, J., concurring), at 1281. . Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980). . — U.S. —, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981). . - U.S. -, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981). . It is noteworthy that Justice Brennan, the author of the Thiboutot opinion, joined" }, { "docid": "807890", "title": "", "text": "needs. II. Like its predecessors, the Education for the Handicapped Act and the Education of the Handicapped Amendments of 1974, the EHCA is a funding statute to assist states in initiating, expanding and improving special education programs. See, e. g., Loughran v. Flanders, 470 F.Supp. 110, 114 (D.Conn.1979). Clearly, however, the EHCA is more than a funding statute simpliciter. For state and local education agencies, the Act is both a source of funds and a source of obligations. Armstrong v. Kline, 476 F.Supp. 583, 602 (E.D.Pa.1979), remanded on other grounds sub nom. Battle v. Commonwealth of Pennsylvania, 629 F.2d 269 (3rd Cir. 1980), on remand, 513 F.Supp. 425 (E.D.Pa.1980). For handicapped children within the contemplation of the EHCA, see 20 U.S.C. § 1401(1), the Act is a source of a federal statutory, “right to a free appropriate education” in every state electing to receive financial assistance under its auspices. Id. § 1412. See, e. g., Kruelle v. New Castle County School District, 642 F.2d 687 (3rd Cir. 1981); Battle v. Commonwealth, supra; Armstrong v. Kline, supra; Rowley v. Board of Education, 483 F.Supp. 536 (S.D.N.Y.1980); Stuart v. Nappi, 443 F.Supp. 1235 (D.Conn.1978). Finally, the Act guarantees parents or guardians of handicapped children the right to secure the provision of a free appropriate public education to their child, creating both administrative and judicial remedies to this end. 20 U.S.C. § 1415. Generally, courts have construed section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, as also providing a private action for enforcement of the right of handicapped children to a free appropriate public education. E. g., S-1 v. Turlington, 635 F.2d 342 (5th Cir. 1981); Tatro v. State of Texas, 625 F.2d 557 (5th Cir. 1980); Georgia Ass’n of Retarded Citizens v. McDaniel, 511 F.Supp. 1263 (N.D.Ga.1981); Boxall v. Sequoia Union High School District, 464 F.Supp. 1104 (N.D.Cal.1979); Doe v. Marshall, 459 F.Supp. 1190 (S.D.Tex.1978), vacated and remanded on other grounds, 616 F.2d 205 (5th Cir. 1980); Howard S. v. Friendswood Independent School District, 454 F.Supp. 634 (S.D.Tex.1978). See also 34 C.R.F. § 104.33 (1979). Section 504 provides:" }, { "docid": "3984780", "title": "", "text": "of the Rehabilitation Act of 1973, which bars discrimination against handicapped persons in federally funded programs, obligates schools to take affirmative steps to eliminate problems raised by an applicant’s hearing disability. Finding that “state agencies such as Southeastern are only ‘encourage[d]’ ... to adopt and implement such policies and procedures,” Id., at 410, 60 L.Ed.2d 980, 99 S.Ct. 2361 [2369] (quoting the Act), we stressed [that] “Congress understood [that] accommodation of the needs of handicapped individuals may require affirmative action and knew how to provide for it in those instances where it wished to do so.” Id., at 411, 60 L.Ed.2d 980, 99 S.Ct. 2361 [2369], 451 U.S. at 27, 101 S.Ct. at 1544-45, 67 L.Ed.2d at 713 (citation omitted). Although Pennhurst reinforced the district court’s doubts that section 504 requires provision of CIC, the court concluded that the Supreme Court had not spoken with sufficient clarity to allow it to depart from prior decisions of this court squarely on point. 516 F.Supp. at 985. As a single panel of the court, we find ourselves simi larly constrained. Tatro I, binding upon us to the extent that it is law of the case, clearly held that CIC is within section 504’s nondiscrimination mandate. 625 F.2d at 564. Moreover, two other panels of our court have held that states must take some affirmative action to provide “services and accommodations” under section 504, notwithstanding the Davis decision. Majors v. Housing Authority, 652 F.2d 454, 457 (5th Cir.1981); Camenisch v. University of Texas, 616 F.2d 127 (5th Cir.1980). Although Camenisch, relied upon in Tatro I, was vacated as moot without reaching the merits of the section 504 issue, 451 U.S. 390, 101 S.Ct. 1830, 68 L.Ed.2d 175, Majors remains good law in our circuit. A recent decision of a sister circuit has reached the same result. New Mexico Ass’n for Retarded Citizens v. New Mexico, 678 F.2d 847 (10th Cir.1982). As we have seen, a prior decision does not bind us as law of the case if it is supervened by controlling authority. White v. Murtha, supra. Similarly, the general rule that one" }, { "docid": "14279394", "title": "", "text": "EHCA are relevant to the question of damages under section 504. Refer to Section II.C. supra. . Because federal regulations promulgated under section 504 with respect to preschool, elementary and secondary education obligate recipients of federal funds to provide handicapped children with a free appropriate public education and mandate procedural safeguards analogous, if not identical, to those found in section 615 of the EHCA, the remedial scheme envisioned in this case under section 504 is quite elaborate. See 34 C.F.R. § 104.36 (1980). . The federal regulations promulgated under section 504 clearly require the provision of a free appropriate public education consistent with that required under the EHCA. Refer to notes 11 & 12 supra. This Court in the past has assumed these regulations to be a valid exercise of agency rulemaking authority. Gladys J. v. Pearland ISD, supra, at 874. In light of Southeastern Community College v. Davis, 442 U.S. 397, 410-12, 99 S.Ct. 2361, 2369-2370, 60 L.Ed.2d 980 (1979), however, some question exists whether the affirmative action required by the regulations constitutes an unauthorized extension of the obligations imposed by the statute. The Fifth Circuit has consistently held in post-Davis decisions that section 504 requires recipients of federal funds to make reasonable accommodations in their programs and services to eliminate “surmountable barrier discrimination” against handicapped individuals. See, e.g., Majors v. Housing Authority of the County of DeKalb, Georgia, 652 F.2d 454, 457-58 (5th Cir. 1981); Tatro v. State of Texas, 625 F.2d 557, 564 (5th Cir. 1980); Camenisch v. University of Texas, supra, at 132-33. Whether the regulations at issue require more than this is unclear. See Association for Retarded Citizens in Colorado v. Frazier, supra, at 122-23 (upholding section 504 regulations). . Plaintiffs .apparently contend that the right to a free appropriate public education secured to handicapped children by the EHCA is also constitutionally mandated by Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). The automatic equation of statutory and constitutional rights in this instance, however, is clearly unwarranted. First, no court has ever declared that handicapped persons constitute a" }, { "docid": "22284457", "title": "", "text": "Rehabilitation Act. The weight of authority in this and other circuits supports the implication of a cause of action. See Pushkin v. Regents of the University of Colorado, 658 F.2d 1372 (10th Cir. 1981); Simon v. St. Louis County, 656 F.2d 316 (8th Cir. 1981), cert. denied, --- U.S. ---, 102 S.Ct. 1485, 71 L.Ed.2d 688 (1981); Kling v. County of Los Angeles, 633 F.2d 876 (9th Cir. 1980); Carmi v. Metropolitan St. Louis Sewer District, 620 F.2d 672, 675 (8th Cir.), cert. denied, 449 U.S. 892, 101 S.Ct. 249, 66 L.Ed.2d 117 (1980); Camenisch v. University of Texas, 616 F.2d 127, 131 (5th Cir. 1980), vacated on other grounds, 451 U.S. 390, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981); NAACP v. Medical Center, Inc., 599 F.2d 1247, 1258-59 (3d Cir. 1979); Davis v. Southeastern Community College, 574 F.2d 1158, 1159 (4th Cir. 1978), rev’d on other grounds, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979); Leary v. Crapsey, 566 F.2d 863 (2d Cir. 1977); United Handicapped Federation v. Andre, 558 F.2d 413, 415 (8th Cir. 1977); Kampmeier v. Nyquist, 553 F.2d 296, 299 (2d Cir. 1977); Lloyd v. Regional Transportation Authority, 548 F.2d 1277, 1284-87 (7th Cir. 1977) (but expressly leaving open the question whether enforcement regulations yet to be issued might limit judicial remedies, at n.29). We find no reason to reiterate the thorough review of legislative history contained in the above-cited authorities. We expressly note, however, that we have reexamined these cases in light of recent Supreme Court decisions which could be perceived to offer an opportunity for a different result. For reasons more fully indicated in the footnote, we are persuaded that recent Supreme Court rulings should not change our finding of a private cause of action under § '504. The barrier to appellant’s Section 504 cause of action, if any, lies in an aspect of standing which we raise sua sponte as a jurisdictional matter. This barrier involves the incorporation of Title VI remedies into the Rehabilitation Act. Section 504 of the Rehabilitation Act provides by its terms that no otherwise qualified individual" }, { "docid": "13831147", "title": "", "text": "for the proposition that a precisely drawn statute, especially where later-enacted, preempts general remedies. They argue that allowing plaintiffs to secure relief under § 504 would subvert the carefully crafted internal administrative procedures and the express private right of action offered by the Handicapped Act. Several cases of the former Fifth Circuit since Brown have applied both of these remedies to redress a single legal injury. See S-l v. Turlington, 635 F.2d 342 (5th Cir.1981) (expulsion of handicapped students from school without considering whether their misconduct was related to their handicap violated both § 504 and the Handicapped Act); Tatro v. State of Texas, 625 F.2d 557 (5th Cir.1980) (failure to provide catheterization services for handi capped children violated both § 504 and Handicapped Act); Camenisch v. University of Texas, 616 F.2d 127 (5th Cir.1980), vacated as moot, 451 U.S. 390, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981) (deaf graduate student entitled to sign language interpreter services under § 504 without previous resort to administrative remedies). Accord, Garrity v. Gallen, 522 F.Supp. 171 (D.D.C.N.H.1982) (both Handicapped Act and § 504 violated by blanket refusal to provide summer services to mentally retarded students); Pastel v. District of Columbia Board of Education, 530 F.Supp. 660 (DNH 1981) (Handicapped Act and § 504 create autonomous yet concurrent rights and remedies). The Brown Court was impressed by legislative history indicating exclusivity, as well as by the balance, completeness, and structural integrity of the statute there in issue. We do not find the factors relied upon by the Supreme Court in Brown applicable here. First, the Handicapped Act and § 504 may be available to different plaintiffs. The Handicapped Act is limited to children between the ages of 3 and 21, or depending upon local state practice, between the ages of 6 and 17. Section 504 contains no such limitations. Second, the protections of the Handicapped Act apply only to those programs funded under that statute. Nothing prevents a state from satisfying the educational needs of handicapped children through other available federal programs. Section 504 would apply to such programs, whereas the Handicapped Act by" }, { "docid": "9830496", "title": "", "text": "no dispute regarding Kyle’s handicapped status. He apparently has auditory and visual perception problems, with concomitant fine and gross motor disfunction and immature behavior. Certified Record of Administrative Proceedings Below, Docket Item (“Dkt.”) 8, at 146 (Due Process Hearing Report, New Castle County School District, Findings of Fact). Accordingly, Kyle’s learning disability may be considered a “complex” handicapping condition under 14 Del.C. § 3124. Id. at 117 (Hearing Examiner Decision). . For a general description of the EAHCA’s statutory scheme, see Board of Education v. Rowley, - U.S. -, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982); Note, Enforcing the Right to an Appropriate Education: The Education for All Handicapped Children Act of 1975, 92 Harv.L.Rev. 1103 (1959). . That section provides as a remedy, “In any action or proceeding to enforce or charge a violation of a provision of this subchapter, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” . Section 504 provides, in part: No otherwise qualified handicapped individual in the United States, as defined in section 706(7) of this title, shall, solely 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. 29 U.S.C. § 794. . Several circuit courts have implied a cause of action under section 504. See Miener v. Missouri, 673 F.2d 969 (8th Cir.), cert. denied, - U.S. -, 103 S.Ct. 215, 74 L.Ed.2d 171 (1982); Pushkin v. Regents of the University of Colorado, 658 F.2d 1372 (10th Cir.1981); Kling v. County of Los Angeles, 633 F.2d 876 (9th Cir.1980); Adashunas v. Negley, 626 F.2d 600 (7th Cir.1980); United Handicapped Education v. Andre, 622 F.2d at 347; Camenisch v. University of Texas, 616 F.2d 127 (5th Cir.1980), vacated on other grounds, 451 U.S. 390, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981); Coleman v. Darden, 595 F.2d 533, 538 (10th Cir.), cert. denied, 444 U.S. 927, 100 S.Ct. 267, 62 L.Ed.2d 184 (1979); Davis v. Southeastern Community College, 574" }, { "docid": "4092472", "title": "", "text": "1983 and the Fifth and Fourteenth Amendments to the United States Constitution. The Plaintiff seeks injunctive and declaratory relief and damages in this action. I. The state and local Defendants contend at the outset that § 504 of the “Act” does not provide a private cause of action to individuals like Mr. Longoria. Federal appellate courts which have considered this contention in other circuits have ruled that an implied cause of action exists to private persons to enforce rights created under 29 U.S.C. § 794. See, NAACP v. The Medical Center, Inc., 599 F.2d 1247 (3rd Cir.1979); Davis v. Southeastern Community College, 574 F.2d 1158 (4th Cir.1978); rev’d on other grounds, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979); United Handicapped Federation v. Andre, 558 F.2d 413 (8th Cir.1977); Kampmeir v. Nyquist, 553 F.2d 296 (2d Cir.1977); Lloyd v. Regional Transportation Authority, 548 F.2d 1277 (7th Cir.1977); Leary v. Crapsey, 566 F.2d 863 (2d Cir.1977). Likewise, the Fifth Circuit has recognized that a private cause of action exists under section 504 of the Act for injunctive and declaratory relief. Camenisch v. University of Texas, 616 F.2d 127 (5th Cir.1980) vacated on other grounds, 451 U.S. 390, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981). In vacating, the Supreme Court did not question the correctness of the Camenisch decision on the issue of whether a private cause of action exists, but remanded the case to the District Court for a judgment on the merits. As a result of the disposition made by the Supreme Court on Camenisch, the District Courts of this circuit have assumed that the private cause of action portion of that opinion remains as the law. See Helms v. McDaniel, 657 F.2d 800 (5th Cir.1981); Brown v. Sibley, 650 F.2d 760, 767 N. 9 (5th Cir.1981); Rogers v. Frito-Lay, Inc., 611 F.2d 1074 (5th Cir.1980). In addition, the legislative history of section 504 of the Act provides more than sufficient indication of the intent of Congress to provide for a private cause of action. As reported in conference during argument on the ratification of Section 504: This" }, { "docid": "18620627", "title": "", "text": "the needs of each handicapped student within its jurisdiction. The defendants’ contention that Section 504 only provides a private right of action in cases involving employment is clearly not the law in this circuit. In Camenisch v. University of Texas, 616 F.2d 127 (5th Cir. 1980), cert. granted, — U.S. —, 101 S.Ct. 352, 66 L.Ed.2d 213 (1981), the court allowed a deaf graduate student to bring a private right of action under Section 504 to challenge the denial of interpreter services by the University. After Camenisch, it is clear that in this circuit, a private right of action under Section 504 is proper in cases other than employment cases. The defendants’ position that the Act supersedes Section 504 and that they should not be jointly applied is similarly without merit. In Tatro v. State of Texas, 625 F.2d 557 (5th Cir. 1980), the court held that the failure to provide catheterization services for a handicapped child violated both the Handicapped Act and Section 504. Also, in S-1 v. Turlington, 635 F.2d 342 (5th Cir. 1981) , the court held, inter alia, that the expulsion of handicapped students from school without consideration of whether or not the students’ misconduct was related to their handicapped condition violated both the Handicapped Act and Section 504. In both S-l and Tatro, the Fifth Circuit applied the Handicapped Act and Section 504 together. The defendants’ reliance on Southeastern Community College v. Davis, supra, is misplaced. As the Fifth Circuit stated in Camenisch, supra, “the Supreme Court’s decision in Southeastern Community College says only that Section 504 does not require a school to provide services to a handicapped individual for a program for which the individual’s handicap precludes him from ever realizing the principal benefits of the training.” 616 F.2d at 133. The case sub judice is clearly distinguishable from Southeastern Community College because the instant plaintiffs will realize the principal benefits of their training. Southeastern Community College is also distinguishable in that it involved a post-secondary educational institution and required the interpretation of a different set of implementing regulations than those at bar. In" }, { "docid": "9844634", "title": "", "text": "well-known administrative regulations may be viewed as Congressional endorsement of agency’s interpretation of statute). C. The Case Law Cases interpreting section 504 have uniformly recognized that preventing discrimination against the handicapped may mean that recipients of federal funds will have to expend funds of their own. The Davis Court recognized that “on occasion the elimination of discrimination might involve some costs.” 442 U.S. at 411 n. 10, 99 S.Ct. at 2369 n. 10. While the Third Circuit has not directly addressed the issues posed in this litigation, cases from other Circuits support the conclusion reached here. A recent example of such a case in the field of transportation is Dopico v. Goldschmidt, 687 F.2d 644 (2d Cir.1982). In Dopico, plaintiff, representing a class of wheelchair-bound handicapped persons, sued the New York City transportation system seeking to make the system accessible to them. Judge Weinfeld had dismissed the claim for failure to state a cause of action, because, under Davis, the plaintiffs were not entitled to the “massive relief” they were seeking under section 504. 518 F.Supp. 1161, 1175 (S.D.N.Y.1981). The Second Circuit, speaking through Judge Newman, reversed, pointing out that even if plaintiffs could not prevail in their attempt to overhaul the entire transportation system of the city, they still may be entitled to some relief under section 504: “We believe that section 504 does require at least ‘modest, affirmative steps’ to accommodate the handicapped in public transportation. Every court that has considered the question has concluded as much.” 687 F.2d at 652 (quoting American Public Transit Assoc. v. Lewis, 655 F.2d 1272, 1278 (D.C.Cir.1981)). In remanding the case, Judge Newman called upon the lower court to give weight to the regulations implementing section 504. See also United Handicapped Federation v. Andre, 558 F.2d 413 (8th Cir.1977); Lloyd v. Regional Transp. Auth., 548 F.2d 1277 (7th Cir.1977). The Fifth and Tenth Circuits have also interpreted Davis as requiring that states spend money to bring about reasonable accommodation. In Camenisch v. University of Texas, 616 F.2d 127 (1980), the Fifth Circuit affirmed an order requiring the University of Texas to procure" }, { "docid": "13831146", "title": "", "text": "a special service to gain equal benefit from his education, the denial of that service would constitute discrimination in violation of § 504.” Defendants challenge the district court’s findings on two grounds. First, they urge that the Handicapped Act establishes a comprehensive federal scheme for the education of handicapped children, thus providing an exclusive remedy for the alleged violation of rights in this case. Second, they contend that even if the Handicapped Act and § 504 remedies are not exclusive, relevant precedent limits § 504 to insuring equal opportunity and does not permit affirmative remedies such as arguably mandated by the district court. The contentions of the defendants are unpersuasive. First, the district court correctly interpreted the statutes by holding that remedies offered by the Handicapped Act and § 504 are not mutually exclusive. Defendants rely primarily on the case of Brown v. General Services Administration, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976) (holding § 717 of Title VII to be the exclusive federal remedy for employment discrimination claims of federal employees), for the proposition that a precisely drawn statute, especially where later-enacted, preempts general remedies. They argue that allowing plaintiffs to secure relief under § 504 would subvert the carefully crafted internal administrative procedures and the express private right of action offered by the Handicapped Act. Several cases of the former Fifth Circuit since Brown have applied both of these remedies to redress a single legal injury. See S-l v. Turlington, 635 F.2d 342 (5th Cir.1981) (expulsion of handicapped students from school without considering whether their misconduct was related to their handicap violated both § 504 and the Handicapped Act); Tatro v. State of Texas, 625 F.2d 557 (5th Cir.1980) (failure to provide catheterization services for handi capped children violated both § 504 and Handicapped Act); Camenisch v. University of Texas, 616 F.2d 127 (5th Cir.1980), vacated as moot, 451 U.S. 390, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981) (deaf graduate student entitled to sign language interpreter services under § 504 without previous resort to administrative remedies). Accord, Garrity v. Gallen, 522 F.Supp. 171 (D.D.C.N.H.1982) (both" }, { "docid": "14279360", "title": "", "text": "plaintiffs’ claim under the Rehabilitation Act, three analytically distinguishable issues are present. The first issue is whether section 504 confers any substantive rights on handicapped individuals. See Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981). If so, the second issue presented is whether an implied cause of action exists to enforce the rights conferred on these individuals. Resolution of this issue requires the application of the four-prong factor analysis first articulated by the Supreme Court in Cort v. Ash, supra. Finally, if an implied cause of action exists, the issue of available remedies must be decided. Lieberman v. University of Chicago, 660 F.2d 1185, 1192 (7th Cir. 1981) (Swygert, J., dissenting). Little doubt exists as to the answers to the first two issues. Every federal court of appeals to consider the matter has ruled that an implied cause of action exists to enforce rights created under 29 U.S.C. § 794. See, e.g., Camenisch v. University of Texas, 616 F.2d 127, 131 (5th Cir. 1980), vacated on other grounds, 451 U.S. 390, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981); NAACP v. The Medical Center, Inc., 599 F.2d 1247 (3d Cir. 1979); Davis v. Southeastern Community College, 574 F.2d 1158 (4th Cir. 1978); rev’d on other grounds, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979); United Handicapped Federation v. Andre, 558 F.2d 413 (8th Cir. 1977); Kampmeier v. Nyquist, 553 F.2d 296 (2d Cir. 1977); Lloyd v. Regional Transportation Authority, 548 F.2d 1277 (7th Cir. 1977). See also Campbell v. Kruse, 434 U.S. 808, 98 S.Ct. 38, 54 L.Ed.2d 65 (1977). Indeed, the legislative history to section 504 contains explicit indication of congressional intent to create such a private right of action. S.Rep.No.93-1297, 93d Cong., 2d Sess. 39-40, reprinted in [1974] U.S.Code Cong. & Ad.News 6373, 6391. See Camenisch, supra, at 131 & n.6. No circuit decision has addressed the issue whether section 504 creates a private right of action in suits for damages, although the Fifth Circuit in Camenisch, supra, at 132 n.10, expressly reserved judgment on the question. Lower" }, { "docid": "807891", "title": "", "text": "supra; Rowley v. Board of Education, 483 F.Supp. 536 (S.D.N.Y.1980); Stuart v. Nappi, 443 F.Supp. 1235 (D.Conn.1978). Finally, the Act guarantees parents or guardians of handicapped children the right to secure the provision of a free appropriate public education to their child, creating both administrative and judicial remedies to this end. 20 U.S.C. § 1415. Generally, courts have construed section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, as also providing a private action for enforcement of the right of handicapped children to a free appropriate public education. E. g., S-1 v. Turlington, 635 F.2d 342 (5th Cir. 1981); Tatro v. State of Texas, 625 F.2d 557 (5th Cir. 1980); Georgia Ass’n of Retarded Citizens v. McDaniel, 511 F.Supp. 1263 (N.D.Ga.1981); Boxall v. Sequoia Union High School District, 464 F.Supp. 1104 (N.D.Cal.1979); Doe v. Marshall, 459 F.Supp. 1190 (S.D.Tex.1978), vacated and remanded on other grounds, 616 F.2d 205 (5th Cir. 1980); Howard S. v. Friendswood Independent School District, 454 F.Supp. 634 (S.D.Tex.1978). See also 34 C.R.F. § 104.33 (1979). Section 504 provides: No otherwise qualified handicapped individual in the United States, as defined in section 706(7) shall, solely 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. . . . This statutory language is virtually identical to discriminatory prohibitions found in Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and Title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681 et seq., see Brown v. Sibley, 650 F.2d 760, 767 (5th Cir. 1981), and at least one court has considered the section to be part of the general corpus of federal discrimination law. New York State A.R.C. and Pari si v. Carey, 612 F.2d 644, 649 (2nd Cir. 1979). To determine the requisites of the “free appropriate public education” to which handicapped children are entitled under the EHCA and section 504, the Court must first look to the EHCA and its legislative history for guidance. Generally, it is" }, { "docid": "18416150", "title": "", "text": "Davis, some courts have found that the Rehabilitation Act guarantees handicapped children a free appropriate public education. See S-1 v. Turlington, 635 F.2d 342, 347 (5th Cir. 1981), cert. denied, - U.S. -, 102 S.Ct. 566, 70 L.Ed.2d 473 (1981); Patsel v. District of Columbia Board of Education, 530 F.Supp. 660 (D.D.C.1982); Association for Retarded Citizens v. Frazier, 517 F.Supp. 105, 118-19 (D.Colo.1981); New Mexico Association for Retarded Citizens v. New Mexico, 495 F.Supp. 391, 396 (D.N.M.1980). These courts rely, in large part, on the HHS regulations implementing § 504 in the area of public education. See 45 C.F.R. Part 84; Frazier, supra, at 120-23. These regulations, however, cannot grant more than Congress intended to grant in § 504. University of Texas v. Camenisch, 451 U.S. 390, 101 S.Ct. 1830, 1835-36, 68 L.Ed.2d 175 (1981) (Burger, C. J., concurring); Southeastern Community College v. Davis, 442 U.S. 397, 411-12, 99 S.Ct. 2361, 2369-2370, 60 L.Ed.2d 980 (1979); see American Public Transit Association v. Lewis, 655 F.2d 1272, 1277 (D.C.Cir.1981) (DOT regulations implementing § 504 are invalid). I fail to see how, after Davis, § 504 can be construed to guarantee a free appropriate public education to all handicapped children, no matter what their individual needs are. Accord, McGowen v. Hahn, C.A. No. 78C433 (N.D.Ill. July 27, 1981) (“[T]he mere failure to provide special education services is not sufficient to state a claim under § 504”). Davis may not have provided lower courts with all the guidance they need, but it surely was clear on one point: § 504 is a non-discrimination statute, not a mandate for affirmative action. This does not mean that § 504 is confined to those instances where school systems invidiously discriminate against handicapped individuals by, for example, refusing to allow an otherwise qualified blind child to attend school. It does mean, though, that courts must find a way to limit the reach of § 504 consistent with the holding of Davis. I believe that this can be done most effectively with a two-tier analysis. First, does the relief requested by the plaintiff require affirmative action? That is," }, { "docid": "9830497", "title": "", "text": "individual in the United States, as defined in section 706(7) of this title, shall, solely 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. 29 U.S.C. § 794. . Several circuit courts have implied a cause of action under section 504. See Miener v. Missouri, 673 F.2d 969 (8th Cir.), cert. denied, - U.S. -, 103 S.Ct. 215, 74 L.Ed.2d 171 (1982); Pushkin v. Regents of the University of Colorado, 658 F.2d 1372 (10th Cir.1981); Kling v. County of Los Angeles, 633 F.2d 876 (9th Cir.1980); Adashunas v. Negley, 626 F.2d 600 (7th Cir.1980); United Handicapped Education v. Andre, 622 F.2d at 347; Camenisch v. University of Texas, 616 F.2d 127 (5th Cir.1980), vacated on other grounds, 451 U.S. 390, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981); Coleman v. Darden, 595 F.2d 533, 538 (10th Cir.), cert. denied, 444 U.S. 927, 100 S.Ct. 267, 62 L.Ed.2d 184 (1979); Davis v. Southeastern Community College, 574 F.2d 1158 (4th Cir.1978), rev’d on other grounds, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979); Kampmeier v. Nyquist, 553 F.2d 296 (2d Cir.1977). . These cases rely, in large measure, on the administrative regulations implementing section 504. See 45 C.F.R. Part 84. It is axiomatic, however, that regulations cannot grant more than that which Congress intended in enacting section 504. See University of Texas v. Camenisch, 451 U.S. 390, 399, 101 S.Ct. 1830, 1836, 68 L.Ed.2d 175 (1981) (Burger, C.J., concurring); Southeastern Community College v. Davis, 442 U.S. at 411-12, 99 S.Ct. at 2369-70. . Several courts, however, have awarded fees pursuant to section 505(b) for claims alleging violation of section 504 and the EAHCA. See e.g., Pratt v. Board of Education of Frederick Co,, 674 F.2d 259 (4th Cir.1982); S-1 v. Turlington, 635 F.2d 342; Department of Education v. Katherine D., 531 F.Supp. 517; Patsel v. District of Columbia Board of Education, 530 F.Supp. 660; Association for Retarded Citizens v. Frazier, 517 F.Supp. 105; Tatro v. State of Texas, 516 F.Supp." }, { "docid": "9486947", "title": "", "text": "local defendants under section 504 of the Rehabilitation Act, and the grant of summary judgment in favor of the federal defendants. I. The Section 504 Claim Against the Local Defendants Section 504 provides that “[n]o otherwise qualified handicapped individual ... shall, solely 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.” 29 U.S.C. § 794 (1976). While conceding that current interpretations of section 504 hold that it supports a private right of action, see, e.g., Baker v. Bell, 630 F.2d 1046, 1055 (5th Cir. 1980); Leary v. Crapsey, 566 F.2d 863, 865 (2d Cir. 1977) (per curiam); United Handicapped Federation v. Andre, 558 F.2d 413, 415 (8th Cir. 1977); Lloyd v. Regional Transportation Authority, 548 F.2d 1277, 1284-87 (7th Cir. 1977), defendants argued, and the District Court held, that section 504 does not permit the relief plaintiffs seek here. Judge Weinfeld based his decision primarily on a consideration of two cases. In the first, Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979), the Supreme Court held that section 504 does not impose an “affirmative-action obligation” on a state educational institution, id. at 411, 99 S.Ct. at 2369, requiring it to make “substantial modifications in [its] programs,” id. at 405, 99 S.Ct. at 2366, or to incur “undue financial and administrative burdens,” id. at 412, 99 S.Ct. at 2370, in an effort to accommodate handicapped persons whose disabilities render them not “otherwise qualified” for such programs. The Court ruled against the plaintiff, who suffered from a severe hearing disability that prevented her from participating in the normal training for nurses, because enrolling her would have required a “fundamental alteration in the nature” of the defendant college’s registered nursing program. Id. at 410, 99 S.Ct. at 2369. In the second case, APTA, supra, the District of Columbia Circuit applied Davis in the mass transportation context and held that the “extensive modifications of existing systems” required by the 1979 “accessibility” regulations, and the “extremely heavy" }, { "docid": "3984781", "title": "", "text": "simi larly constrained. Tatro I, binding upon us to the extent that it is law of the case, clearly held that CIC is within section 504’s nondiscrimination mandate. 625 F.2d at 564. Moreover, two other panels of our court have held that states must take some affirmative action to provide “services and accommodations” under section 504, notwithstanding the Davis decision. Majors v. Housing Authority, 652 F.2d 454, 457 (5th Cir.1981); Camenisch v. University of Texas, 616 F.2d 127 (5th Cir.1980). Although Camenisch, relied upon in Tatro I, was vacated as moot without reaching the merits of the section 504 issue, 451 U.S. 390, 101 S.Ct. 1830, 68 L.Ed.2d 175, Majors remains good law in our circuit. A recent decision of a sister circuit has reached the same result. New Mexico Ass’n for Retarded Citizens v. New Mexico, 678 F.2d 847 (10th Cir.1982). As we have seen, a prior decision does not bind us as law of the case if it is supervened by controlling authority. White v. Murtha, supra. Similarly, the general rule that one panel of our court does not overrule another panel does not prevent us from overriding a prior decision “based entirely on [a] theory” subsequently rejected by the Supreme Court. Hanson v. Town of Flower Mound, 679 F.2d 497, 501 (5th Cir.1982). We do not think Pennhurst goes so far. In Majors, this court recognized that Davis generally disapproved of affirmative action requirements under section 504. 652 F.2d at 456. However, the court went on to emphasize the following caveat from Davis: We do not suggest that the line between a lawful refusal to extend affirmative action and illegal discrimination against handicapped persons always will be clear. It is possible to envision situations where an insistence on continuing past requirements and practices might arbitrarily deprive genuinely qualified handicapped persons of the opportunity to participate in a covered program. Technological advances can be expected to enhance opportunities to rehabilitate the handicapped or otherwise to qualify them for some useful employment. Such advances also may enable attainment of these goals without imposing undue financial and administrative burdens upon" }, { "docid": "18620626", "title": "", "text": "met ...” 34 C.F.R. § 104.-33(b)(1). Pursuant to 34 C.F.R. § 104.-33(b)(2), implementation of an IEP developed in accordance with the Act is one way of providing education that meets the indi vidual needs of handicapped children. The regulations discussed above readily indicate the necessity for individualized attention to the needs of handicapped children. There can be no doubt that they, as does the Handicapped Act, place an emphasis on the individual. A similar conclusion was reached in Doe v. Marshall, 459 F.Supp. 1190 (S.D.Tex.1978). There the court held that Section 504 “places upon school districts ... the duty of analyzing individually the needs of each handicapped student and devising a program which will enable each individual handicapped student to receive an appropriate, free public education.” 459 F.Supp. at 1191. The court therefore entered an order enjoining the defendant school district from preventing the handicapped plaintiff from playing football during the school year in question. This court agrees with the court in Doe that Section 504 places a duty on school districts to individually consider the needs of each handicapped student within its jurisdiction. The defendants’ contention that Section 504 only provides a private right of action in cases involving employment is clearly not the law in this circuit. In Camenisch v. University of Texas, 616 F.2d 127 (5th Cir. 1980), cert. granted, — U.S. —, 101 S.Ct. 352, 66 L.Ed.2d 213 (1981), the court allowed a deaf graduate student to bring a private right of action under Section 504 to challenge the denial of interpreter services by the University. After Camenisch, it is clear that in this circuit, a private right of action under Section 504 is proper in cases other than employment cases. The defendants’ position that the Act supersedes Section 504 and that they should not be jointly applied is similarly without merit. In Tatro v. State of Texas, 625 F.2d 557 (5th Cir. 1980), the court held that the failure to provide catheterization services for a handicapped child violated both the Handicapped Act and Section 504. Also, in S-1 v. Turlington, 635 F.2d 342 (5th Cir." }, { "docid": "18171319", "title": "", "text": "the breadth of these Section 504 compliance regulations. In Southeastern Community College, the Court intimated that the regulations may constitute improper standards for determining Section 504 violations if interpreted too broadly: “neither the language, purpose, nor history of § 504 reveals an intent to impose an affirmative action obligation on all recipients of federal funds. Accordingly, we hold that even if HEW has attempted to create such an obligation itself [through the compliance regulations], it lacks the authority to do so.” Id. at 411-12, 99 S.Ct. at 2369-70 (footnote omitted) (emphasis added). The Court unanimously concluded that the fundamental purpose of Section 504 is to prohibit discrimination against the handicapped rather than mandate affirmative relief for them. Id. at 410, 99 S.Ct. at 2369. Although the case was primarily concerned with post-secondary education rights of handicapped students, all of the statute’s compliance regulations must be interpreted with the Southeastern Community College caveat in mind. Several opinions subsequent to Southeastern Community College appear to construe Section 504’s pre-college education compliance regulations to mandate broad affirmative relief. See, e.g., Tatro v. Texas, 625 F.2d 557 at 564 (5th Cir. 1980); Gladys J. v. Pearland Independent School District, 520 F.Supp. 869, 874-75 (S.D.Tex.1981); Association For Retarded Citizens v. Frazier, 517 F.Supp. 105, 122 (D.Colo.1981); Association of Retarded Citizens v. McDaniel, 511 F.Supp. 1263, 1281 (N.D.Ga.1981). However, each of these cases simultaneously involved the Education for All Handicapped Children Act of 1975, 20 U.S.C. § 1401 et seq. (Handicapped Act) and Section 504. The Handicapped Act provides financial assistance to states for the purpose of furnishing educational services to handicapped children. The receipt of this federal money is contingent upon the state’s performing certain affirmative duties with respect to the education of the handicapped. See generally Association For Retarded Citizens, 517 F.Supp. at 108-13 (discussion of Handicapped Act). The cited cases are dissimilar to the instant action because New Mexico has chosen not to participate in the Handicapped Act program. Accordingly, those opinions are of limited value to us inasmuch as their analyses of Section 504 are inextricably interwoven with their construction of the" }, { "docid": "9844635", "title": "", "text": "F.Supp. 1161, 1175 (S.D.N.Y.1981). The Second Circuit, speaking through Judge Newman, reversed, pointing out that even if plaintiffs could not prevail in their attempt to overhaul the entire transportation system of the city, they still may be entitled to some relief under section 504: “We believe that section 504 does require at least ‘modest, affirmative steps’ to accommodate the handicapped in public transportation. Every court that has considered the question has concluded as much.” 687 F.2d at 652 (quoting American Public Transit Assoc. v. Lewis, 655 F.2d 1272, 1278 (D.C.Cir.1981)). In remanding the case, Judge Newman called upon the lower court to give weight to the regulations implementing section 504. See also United Handicapped Federation v. Andre, 558 F.2d 413 (8th Cir.1977); Lloyd v. Regional Transp. Auth., 548 F.2d 1277 (7th Cir.1977). The Fifth and Tenth Circuits have also interpreted Davis as requiring that states spend money to bring about reasonable accommodation. In Camenisch v. University of Texas, 616 F.2d 127 (1980), the Fifth Circuit affirmed an order requiring the University of Texas to procure and compensate an interpreter to assist a deaf graduate student in his classes. Although the Supreme Court vacated the opinion as moot without reaching the merits of the section 504 issue, 451 U.S. 390 (1981), the panel’s reasoning was endorsed in subsequent Fifth Circuit opinions: Majors v. Housing Authority, 652 F.2d 454 (1981), Tatro v. Texas, 625 F.2d 557 (1980) (Tatro I) and Tatro v. Texas, 703 F.2d 823 (1983) (Tatro II). In New Mexico Ass’n for Retarded Citizens v. New Mexico, 678 F.2d 847 (10th Cir.1982), the Tenth Circuit held that section 504 may require the state to modify its educational system to accommodate its retarded schoolchildren by providing them with, inter alia, occupational, physical and speech therapy services. The case was remanded to the district court to consider whether the financial burden of such accommodation would be “excessive” under the guidelines set forth in Davis. D. Conclusion I conclude that accommodating plaintiffs to enable them to perform the essential functions of their position is consistent with the mandates of section 504 and with" } ]

[ { "docid": "23320614", "title": "", "text": "dismissed Custer’s ERISA claim with prejudice. Whether the district court acted properly thus depends on whether Sweeney qualifies as a “fiduciary” under ERISA. “[T]he concept of a fiduciary under ERISA is broader than the common law concept of a trustee.” Custer v. Pan Am. Life Ins. Co., 12 F.3d 410, 418 n. 3 (4th Cir.1993). It includes not only those “named [as fiduciaries] in the plan instrument, or who, pursuant to a procedure specified in the plan, [are] identified as ... fiduciaries],” 29 U.S.C. § 1102(a)(2), but any individual who de facto performs specified discretionary functions with respect to the management, assets, or administration of a plan. According to § 3(21)(A) of ERISA: [A] person is a fiduciary with respect to a plan to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, (ii) he renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan. 29 U.S.C. § 1002(21)(A). While an attorney’s duty to his client is that of a fiduciary, see F.H. Krear & Co. v. Nineteen Named Trustees, 810 F.2d 1250, 1259 (2d Cir.1987), the mere fact that an attorney represents an ERISA plan does not make the attorney an ERISA fiduciary because legal representation of ERISA plans rarely involves the discretionary authority or control required by the statute’s definition of “fiduciary.” According to the regulations promulgated by the Department of Labor— the agency charged with enforcing ERISA— an attorney or other professional service provider who represents an ERISA plan will not qualify as an ERISA fiduciary so long as he “performs purely ministerial functions ... within a framework of policies, interpretations, rules, practices and procedures made by other persons.” 29 C.F.R. § 2509.75-8(D-2); see also 29 C.F.R. § 2509.75-5(D-l) (applying ERISA’s definition of “fiduciary” to attorneys); Useden v. Acker," } ]

[ { "docid": "23621766", "title": "", "text": "with the Fund when it advised the Fund to self-insure. See, e.g., Eaves v. Penn, 587 F.2d 453, 458 (10th Cir.1978); Brock v. Self, 632 F.Supp. 1509, 1521 (W.D.La.1986); Brink v. DaLesio, 496 F.Supp. 1350, 1374 (D.Md.1980). However, the record does not support a finding that Equitable was an ERISA fiduciary. Equitable had no control over whether the Fund would accept or reject its advice to self-insure. Merely giving advice to self-insure does not make Equitable a fiduciary within the meaning of 29 U.S.C. § 1002(21)(A)(ii) (1985) because the advice was not given on a regular basis pursuant to a mutual agreement for a fee. Simply urging the purchase of its products does not make an insurance company an ERISA fiduciary with respect to those products. See, e.g., Austin v. General American Life Ins. Co., 498 F.Supp. 844, 846 (N.D.Ala.1980); Cate v. Blue Cross & Blue Shield of Alabama, 434 F.Supp. 1187, 1190 (E.D.Tenn.1977). Similarly, there is no evidence that Equitable had any discretion to grant or deny benefits, adjudicate benefit claims, invest fund assets or administer the Fund. Next, the Fund seeks to establish non-fiduciary respondeat superior liability for Equitable’s failure to adequately train and supervise Holden. The doctrine of respondeat superior can be a source of liability in ERISA cases. Stanton v. Shearson Lehman/American Express, Inc., 631 F.Supp. 100, 105 (N.D.Ga.1986). However, the facts do not support imposition of respondeat superior in this case. For respondeat superior liability to attach, the employee must have breached his duty to a third party while acting in the course and scope of his employment. Sampay v. Morton Salt Co., 395 So.2d 326, 328 (La.1981). It is clear that Holden did not breach his fiduciary duties while acting in the scope of his employment as an Equitable agent. Holden’s duties as an Equitable agent were to “solicit applications for life and health insurance policies and annuity contracts.” He breached his fiduciary duties to the Fund while he was granting and denying benefit claims and carrying on activities as Fund administrator. These actions were clearly beyond the scope of his duties as an" }, { "docid": "22980841", "title": "", "text": "of Welch, Morgan and Kleindienst have also argued in support of dismissal of the plaintiffs’ second amended complaint as an alternative ground for affirming the judgments in their favor. We discuss with respect to each defendant the various grounds asserted in the district court in support of dismissing both the first and second amended complaint. A. Defendants as ERISA Fiduciaries The district court concluded that American, Evans and Klekamp “are not fiduciaries within the meaning of E.R.I.S.A. and therefore are not subject to suit in this court.” Order of Nov. 24, 1980, at 7. The fiduciary duty standards imposed by ERISA, see 29 U.S.C. §§ 1104, 1105 (1976), are enforceable in civil damage actions only against parties who are fiduciaries under the ERISA statute. 29 U.S.C. § 1109(a) (1976). A person is a fiduciary for purposes of ERISA to the extent that he or she exercises discretion over the management of plan assets, renders investment advice for a fee or exercises discretionary control over the administration of a plan. 29 U.S.C. § 1002(21)(A) (1976). The facts recited in the plaintiffs’ complaint do not support their general allegation that the defendants in this case are fiduciaries because they “exercised control over the funds of [the Fund] and converted them to their own use.” Second Amended Complaint ¶ 35. Plaintiffs have not alleged any facts which would indicate that these defendants exercised any discretionary control over either the investment of Fund assets or the administration of the Fund. At best, the allegations of the complaint reveal a pattern of conspiratorial actions in support of actions by parties, such as Hauser and his associates, who may be fiduciaries as defined in ERISA. Cf. Freund v. Marshall & Ilsley Bank, 485 F.Supp. 629, 634-35 (W.D.Wis.1979) (trustees, administrators and officers of union pension plan were ERISA-defined fiduciaries).. See also Brink v. DaLesio, 496 F.Supp. 1350, 1374-75 (D.Md.1980), aff’d in part, rev’d in part on other grounds, 667 F.2d 420 (4th Cir. 1981). But, even though plaintiffs have failed to state a claim against these defendants as fiduciaries within the meaning of ERISA, they may still" }, { "docid": "16430636", "title": "", "text": "Funds, who have standing under ERISA to bring fiduciary breach claims. See 29 U.S.C. § 1132(e). Moreover, in October, 1996, the Funds amended the Complaint to add the Trustees as plaintiffs, thereby curing any standing defect that may have existed in the Funds’ first Complaint, filed in 1995. B. Fiduciary Status ERISA defines a fiduciary as a person who exercises discretionary authority or discretionary control respecting management of a plan or its assets, or who renders investment advice for a fee, or who has authority or responsibility to do so. 29 U.S.C. § 1002(21)(A). Unlike the common law definition under which fiduciary status is determined by virtue of the position a person holds, ERISA’s definition is functional. See Mertens v. Hewitt Assocs., 508 U.S. 248, 262, 113 S.Ct. 2063, 2071-72, 124 L.Ed.2d 161 (1993); Blatt v. Marshall & Lassman, 812 F.2d 810, 812 (2d Cir.1987). Thus, while attorneys to a plan are not ordinarily viewed as ERISA fiduciaries if they merely provide ordinary professional advice, they may nevertheless become liable under ERISA when they “cross the line” by exercising discretionary authority or control. Mertens, 508 U.S. at 262, 113 S.Ct. at 2071-72. Attorneys may be viewed as exercising discretionary authority or control within the meaning of Section 3(14) of ERISA even when acting in an advisory capacity. According to the legislative history of the statute: While the ordinary functions of consultants and advisers to employee benefit plans ... may not be considered as fiduciary functions, it must be recognized that there will be situations where such consultants and advisers may because of their special expertise, in effect, be exercising discretionary authority or control with respect to the management or administration of such plan or some authority or control regarding its assets. In such cases, they are to be regarded as having assumed fiduciary obligations within the meaning of the applicable definition. H.R.Rep. No. 1280, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Admin. News 5038, 5103; see also Reich v. Lancaster, 55 F.3d 1034 (5th Cir.1995) (fund’s insurance agent deemed to be fiduciary where trustee, who had no" }, { "docid": "23506379", "title": "", "text": "with terms of plan was not fiduciary); Pappas, 923 F.2d at 535 (actuaries who merely gave advice to plan trustees and invited reliance on such advice did not thereby become fiduciaries); Anoka Orthopaedic Assocs., P.A. v. Lechner, 910 F.2d 514, 517 (8th Cir.1990) (attorney and accounting firm who performed ministerial tasks that did not entail discretionary authority or responsibility were not fiduciaries); Nieto v. Ecker, 845 F.2d 868, 870 (9th Cir.1988) (attorney was not fiduciary absent evidence that he exercised authority over plan other than by usual professional functions); American Fed’n of Unions, 841 F.2d at 664 (simply urging purchase of its products did not make insurance company an ERISA fiduciary with respect to those products). The decision we affirm today is like those in which parties have been found to have stepped into the role of ERISA fiduciary. See, e.g., Martin v. Feilen, 965 F.2d 660, 669 (8th Cir.1992) (accountants who provided professional accounting services were fiduciaries of ESOP where they not only provided professional accounting services but also recommended transactions, structured deals, and provided investment advice to such an extent that they exercised effective control over the plan’s assets and used their positions as corporate insiders to involve the plan in transactions in which they had a personal interest), cert. denied, — U.S. -, 113 S.Ct. 979, 122 L.Ed.2d 133 (1993). Two cases involving insurance agents are illustrative. In Brink v. DaLesio, 496 F.Supp. 1350 (D.Md.1980), ajfd in relevant part, rev’d in part, 667 F.2d 420 (4th Cir.1981), the district court found an insurance agent to be a fiduciary, concluding that he exercised discretionary authority concerning the management of the funds and rendered investment advice for a fee. See id. at 1374-75. The court relied on cases that held plan administrators and consultants who effectively controlled or guided the management of plans to be fiduciaries. Id. at 1375 (citing cases). The court cited uncontradicted testimony that the insurance agent was solely responsible for formulating specifications when bids were solicited; made the initial decisions that bids would be solicited when optometric and dental services were added to the plans;" }, { "docid": "3868845", "title": "", "text": "fiduciaries when they provided plaintiff with erroneous pension estimates. Under ERISA, a person is a fiduciary with respect to a plan to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, (ii) he renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan. 29 U.S.C. § 1002(21)(A). A fiduciary within the meaning of ERISA is someone acting in the capacity of manager, administrator, or financial adviser to a plan. Pegram v. Herdrich, 530 U.S. 211, 222, 120 S.Ct. 2143, 147 L.Ed.2d 164 (2000). The Sixth Circuit employs a functional test to determine fiduciary status. Briscoe v. Fine, 444 F.3d 478, 486 (6th Cir.2006); see also Mertens v. Hewitt Assocs., 508 U.S. 248, 262, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993) (ERISA “defines ‘fiduciary’ not in terms of formal trusteeship, but in functional terms of control and authority over the plan”). Under the statute, an administrator or manager of the plan is a fiduciary only “to the extent” that he exercises discretionary authority, control, or responsibility re speeting the management of the plan, the disposition of its assets, or the administration of the plan. Pegram, 530 U.S. at 225-226, 120 S.Ct. 2143; § 1002(21)(A). Thus, it is necessary to ask whether a person is a fiduciary with respect to the particular activity in question. Briscoe, 444 F.3d at 486. Persons performing administrative and ministerial functions are not fiduciaries. Id. at 488 (entity which performs administrative and ministerial tasks that did not involve the exercise of discretionary authority was not a fiduciary); Flacche v. Sun Life Assur. Co. of Canada (U.S.), 958 F.2d 730, 734 (6th Cir.1992) (defendant company which performed only ministerial functions for the plan was not acting as a fiduciary when it mistakenly calculated plaintiff’s retirement benefits); Baxter v. C.A. Muer" }, { "docid": "6036603", "title": "", "text": "recognize that in some instances, a person or entity is not an ERISA fiduciary. The mere fact that a defendant has some connection to or involvement in a pension plan does not confer. fiduciary status. For example, a defendant may fall outside the scope of § 1002(21)(A) if he or she lacks the requisite discretionary authority or responsibility with respect to a pension plan. See, e.g., Austin v. General Life Insurance Company, 498 F.Supp. 844, 846 (N.D.Ala.1980) (not every insurer is an ERISA fiduciary; fiduciary status turns upon the terms of the pension agreement); Boyer v. J.A. Majors Company Employees’ Profit Sharing Plan, 481 F.Supp. 454, 458 (N.D.Ga.1979) (corporate employer not an ERISA fiduciary when pension plan was managed and administered jointly by a separate committee and a trustee bank). Furthermore, a party may perform important and necessary functions, but will not be deemed a fiduciary because these acts are ministerial and not discretionary. E.g., Robbins v. First American Bank of Virginia, 514 F.Supp. 1183, 1190-91 (N.D.Ill.1981) (bank not a fiduciary when it acted as a servicing agent and was never involved in either the administration or management of the fund or its investment decisions). Interpretative regulations issued by the Department of Labor have further qualified the definition of “fiduciary.” 29 C.F.R. § 2509.75-8 (1985). These regulations make clear that a person who performs purely ministerial functions for an employee benefit plan within a framework of policies, interpretations, rules, practices, and procedures is not a fiduciary. III. Turning to the facts of this case, the Court concludes that defendants are not fiduciaries under the AICPA Plan. First, defendants do not render any investment advice, either for a fee or otherwise, and have no control over the assets of the Plan, which, as the Plan makes clear, never revert to the employer. At best, an employer sends contributions to MONY as an agent of the participant. 29 U.S.C. § 1002(21)(A)(ii). Second, defendants have no discretionary role in the administration of the AICPA Plan. By the terms of the Plan the employer has almost no discretion in the Plan’s administration. The Plan" }, { "docid": "15922325", "title": "", "text": "under ERISA. 1. Fiduciary Status Under ERISA Under ERISA § 402(a), 29 U.S.C. § 102(a), every employee benefit plan must appoint “one or more named fiduciaries who jointly or severally shall have authority to control and manage the operation and administration of the plan.” In addition to these so-called “named fiduciaries,” individuals may acquire fiduciary status if they exercise the fiduciary functions set forth in ERISA § 3(21)(A), 29 U.S.C. § 1002(21)(A). Mertens v. Hewitt Assocs., 508 U.S. 248, 262, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993) (“ERISA .defines ‘fiduciary’ not in terms of formal trusteeship, but in functional terms of control and authority over the plan .... ”); see 29 C.F.R. §§ 2509.75-8, 2510.3-21 (describing various functions that do or do not create fiduciary status). Section 3(21)(A) of ERISA, 29 U.S.C. § 1002(21)(A), defines a person as a fiduciary of an ERISA plan to the extent that he: (i) [E]xercises any discretionary authority or discretionary control respecting manágement of such plan or exercises any authority or control respecting management or disposition of its assets, (ii) he renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan. (emphasis added). The definition, thus, encompasses a variety of duties commonly performed by fiduciaries, including the providing of investment advice, administrative control over a plan, advising on whom to retain as legal'or investment advisors to a plan, and, ultimately, how to invest plan assets. Once deemed a fiduciary, either by express designation in the plan documents or the assumption of fiduciary obligations (the functional or de facto method), the fiduciary becomes subject to ERISA’s statutory duties. These duties, as summarized by the Supreme Court, “relate to the proper management, administration, and investment of fund assets, the maintenance of proper records, the disclosure of specified information, and the avoidance of conflicts of interest.” Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 142-43, 105 S.Ct." }, { "docid": "6879536", "title": "", "text": "which alleges that “[i]f defendant Harold Faggen was not a fiduciary of the Pension Fund, he knowingly participated in each of the breaches of fiduciary duty set forth in the Second, Sixth and Seventh Claims for Relief,” see Complaint, ¶70. Accordingly, the Court must determine (1) whether Faggen was a fiduciary; or, if not, then (2) whether Faggen knowingly participated in the breaches of fiduciary duty alleged in the complaint. 1. Claim for Breach of Fiduciary Duty ERISA § 3(21)(A) defines a “fiduciary” as a person who: (i) ... exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, (ii) ... renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of , such plan, or has any authority or responsibility to do so, or (in) ... has any discretionary authority or discretionary responsibility in the administration of such plan. 29 U.S.C. § 1002(21)(A). On June 25, 1975, the Department of Labor issued an interpretative bulletin further defining under what circumstances a consultant is considered to be a fiduciary under ERISA. See 29 C.F.R. § 2509.75-5, D-l. Pursuant to this bulletin, a consultant who renders services to an employee benefit plan (other than an investment adviser to the plan) is not a fiduciary solely by virtue of rendering such services, absent a showing that the consultant exercises discretionary authority or discretionary control over the plan’s management, administration or assets, or renders investment advice for a fee. Id. Thus, a consultant who exercises no authority over a plan other than in the exercise of his “usual professional functions” is not a fiduciary. Mertens v. Hewitt Assocs., 948 F.2d 607, 610 (9th Cir.1991). See also Greenblatt v. Prescription Plan Servs. Corp., 783 F.Supp. 814, 820 (S.D.N.Y.1992) (“One who exercises actual control over disposition of assets is a fiduciary under ERISA; one who engages in purely ‘ministerial’ functions is not”). In this case, the complaint alleges nothing more than that “defendant Faggen, while engaged as a consultant to" }, { "docid": "19183707", "title": "", "text": "§ 408(b); and (4) consented to by the plaintiffs, thereby making them proper and estopping plaintiffs’ challenge to them. While the plaintiffs’ central claim is that defendants engaged in prohibited transactions as described in § 406(b), a threshold matter that must be determined is whether or not the defendants were fiduciaries under ERISA. The term “fiduciary” is defined under ERISA as follows: (21)(A) Except as otherwise provided in subparagraph (B), a person is a fiduciary with respect to a plan to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, (ii) he renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan. Such term includes any person designated under section. 1105(c)(1)(B) of this title. 29 U.S.C. § 1002(21)(A) (emphasis added). Plaintiffs set out three alternative grounds for holding all of the defendants liable as fiduciaries for both restitution and damages. Specifically, they contend that all of the defendants should be held liable because; (1) they are fiduciaries; (2) they conspired with a fiduciary to enter into prohibited transactions; or (3) their commingling of operations warrants the disregarding of any separate identity. The term “fiduciary” is to be liberally interpreted to effect the statute’s remedial purpose, and the courts have “taken a broad view in deciding whether a particular service provider should be considered a fiduciary under ERISA.” Brink v. DaLesio, 496 F.Supp 1350, 1375 (D.Md.1980) affd in part and rev’d in part, 667 F.2d 420 (4th Cir.1982); see also Kroll & Tauber, Fiduciary Responsibility and Prohibited Transactions under ERISA, 14 Real Property, Probate and Trust Journal, 657, 660 (1979). As the court noted in Eaton v. D Amato, 581 F.Supp. 743, 746 (D.D.C.1980), “Applying a restrictive judicial gloss to the term ‘fiduciary’ itself would, in effect, enable trustees to transfer important responsibilities" }, { "docid": "23621765", "title": "", "text": "fund because Holden was not a fiduciary with respect to the pension fund. The record supports the court’s finding that no evidence was adduced that the Fund’s claim for $8,746.00 in unnecessary premiums paid on the self-insurance plan or any other damages resulted from the delay in payment of reserves by Equitable. Finally, we affirm the district court’s finding that Holden is not liable for losses sustained as a result of the conversion from group term to whole life insurance coverage. A judgment of dismissal entered on a settlement agreement between Equitable and the Fund indicates that Equitable reversed the transaction and refunded the premiums paid for whole life coverage. The Fund is only entitled to one recovery for its loss. B) Equitable’s Liability The Fund seeks to hold Equitable liable for its losses under theories of fiduciary and non-fiduciary liability. The district court absolved Equitable of all liability, holding that it was never more than an insurance carrier with respect to the Fund. We affirm. The Fund argues that Equitable entered a fiduciary relationship with the Fund when it advised the Fund to self-insure. See, e.g., Eaves v. Penn, 587 F.2d 453, 458 (10th Cir.1978); Brock v. Self, 632 F.Supp. 1509, 1521 (W.D.La.1986); Brink v. DaLesio, 496 F.Supp. 1350, 1374 (D.Md.1980). However, the record does not support a finding that Equitable was an ERISA fiduciary. Equitable had no control over whether the Fund would accept or reject its advice to self-insure. Merely giving advice to self-insure does not make Equitable a fiduciary within the meaning of 29 U.S.C. § 1002(21)(A)(ii) (1985) because the advice was not given on a regular basis pursuant to a mutual agreement for a fee. Simply urging the purchase of its products does not make an insurance company an ERISA fiduciary with respect to those products. See, e.g., Austin v. General American Life Ins. Co., 498 F.Supp. 844, 846 (N.D.Ala.1980); Cate v. Blue Cross & Blue Shield of Alabama, 434 F.Supp. 1187, 1190 (E.D.Tenn.1977). Similarly, there is no evidence that Equitable had any discretion to grant or deny benefits, adjudicate benefit claims, invest fund assets" }, { "docid": "866665", "title": "", "text": "the corporation was deemed to be a fiduciary, and thus personally liable for breaches of fiduciary duty, only after it was shown that he personally exercised control and/or discretion over ERISA plan assets. See also, Brink v. DaLesio, 496 F.Supp. 1350, 1374 (D.M.D.1980), rev’d in part, aff'd in relevant part, 667 F.2d 420 (4th Cir.1981) (insurance broker was fiduciary for purposes of ERISA based on his “sole responsibility” for rendering investment advice) and Miller v. Lay Trucking Co., Inc., 606 F.Supp. 1326 (N.D.Ind.1985) (holding that one who is named in documents as plan administrator, signs documents as plan administrator, and assumes discretionary authority in the administration of the pension plan is a fiduciary). The officers argue that they are not fiduciaries within the meaning of the Act, and, as such, they were not bound by the fiduciary standards of ERISA § 404, 29 U.S.C. 1104, in recommending, designing and implementing an amendment to the Custom welfare plan. The majority opinion adopts their argument and holds that “section 3(21)(A) does not extend fiduciary status of a corporation to its officers ... [w]here no designation [of the officer as a fiduciary or trustee of the plan] is made or im-plied_” Op. at 36 (Mansmann, J.) (emphasis added.) I join the result reached by the majority but do so solely because the plaintiffs’ complaint and answer to defendants’ motion for summary judgment contain absolutely no allegations or facts that would support a finding that these officers assumed a fiduciary status. Indeed, the plaintiffs’ allegations “fail to distinguish between defendants’ duties as corporate officers and those as Plan trustees.” Amato v. Western Union International, Inc., 773 F.2d 1402, 1417 (2d Cir.1985), cert. dismissed, 474 U.S. 1113, 106 S.Ct. 1167, 89 L.Ed.2d 288 (1986). Finally, the fact that Custom admittedly delegated the authority over plan administration to Self-Funded Plans, Inc. contradicts plaintiffs’ mere assertion that these officers performed fiduciary roles. Since Congress took a functional approach in defining who is a fiduciary, the function that the officer is alleged to have performed in becoming an alleged fiduciary must be carefully scrutinized. By failing to allege" }, { "docid": "16430635", "title": "", "text": "be preempted by ERISA. Thus, the Court’s holding that breach of contract and professional malpractice claims are not preempted by ERISA is inapplicable here. As set forth above, the determining factor in the preemption analysis is whether ERISA provides a remedy for the conduct at issue. Here, ERISA provides a remedy for the conduct upon which the Funds base their common law breach of fiduciary duty claim. Accordingly, the Levin Defendants’ Motion to dismiss Plaintiffs Sixty-eighth claim will be granted, and the Funds’ motion for summary judgment with respect to that claim will be denied. IV. The ERISA Cause of Action The Levin Defendants seek to dismiss the ERISA claims on the grounds that: (i) the Trust Funds lack standing to sue them for breach of fiduciary duty; (ii) the Levin Defendants do not satisfy the statutory definition of an ERISA fiduciary; and (iii) the claims are time-barred. A. Standing The contention that the Funds lack standing to bring this action lacks merits because this action was commenced by the Board of Trustees of the Funds, who have standing under ERISA to bring fiduciary breach claims. See 29 U.S.C. § 1132(e). Moreover, in October, 1996, the Funds amended the Complaint to add the Trustees as plaintiffs, thereby curing any standing defect that may have existed in the Funds’ first Complaint, filed in 1995. B. Fiduciary Status ERISA defines a fiduciary as a person who exercises discretionary authority or discretionary control respecting management of a plan or its assets, or who renders investment advice for a fee, or who has authority or responsibility to do so. 29 U.S.C. § 1002(21)(A). Unlike the common law definition under which fiduciary status is determined by virtue of the position a person holds, ERISA’s definition is functional. See Mertens v. Hewitt Assocs., 508 U.S. 248, 262, 113 S.Ct. 2063, 2071-72, 124 L.Ed.2d 161 (1993); Blatt v. Marshall & Lassman, 812 F.2d 810, 812 (2d Cir.1987). Thus, while attorneys to a plan are not ordinarily viewed as ERISA fiduciaries if they merely provide ordinary professional advice, they may nevertheless become liable under ERISA when they “cross" }, { "docid": "8365967", "title": "", "text": "To establish an ERISA claim for breach of a fiduciary duty, “plaintiffs must allege that (1) defendants were fiduciaries of the plan who, (2) acting within their capacities as plan fiduciaries, (3) engaged in conduct constituting a breach of an ERISA fiduciary duty.” In re Pfizer Inc. ERISA Litig., No. 04 Civ. 10071(LTS)(JFE), 2009 WL 749545, *6 (S.D.N.Y. Mar. 20, 2009) (citing 29 U.S.C. § 1109; Pegram v. Herdrich, 530 U.S. 211, 222-224, 120 S.Ct. 2143, 147 L.Ed.2d 164 (2000)); see also Blankenship v. Chamberlain, No. 4:08CV01168 ERW, 695 F.Supp.2d 966, 974, 2010 WL 427764, *7 (E.D.Mo. Feb. 1, 2010) (reciting elements). A. Defendants’ Fiduciary Status Under ERISA ERISA provides that: [A] person is a fiduciary with respect to a plan to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, (ii) he renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or (in) he has any discretionary authority or discretionary responsibility in the administration of such plan. 29 U.S.C. § 1002(21)(A). The Unites States Supreme Court explains that “ERISA ... defines ‘fiduciary’ not in terms of formal trusteeship, but in functional terms of control and authority over the plan.” Mertens v. Hewitt Assocs., 508 U.S. 248, 262, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993) (emphasis in original) (citing 29 U.S.C. § 1002(21)(A)). Likewise, the Eighth Circuit holds that “[t]he term fiduciary is to be construed broadly[.]” Olson v. E.F. Hutton & Co., Inc., 957 F.2d 622, 625 (8th Cir.1992) (first alternation in original) (quoting Consol. Beef Indus, v. New York Life Ins. Co., 949 F.2d 960, 963 (8th Cir.1991)). The appellate court further explains that “[a] court must ask whether a person is a fiduciary with respect to the particular activity in question.” Maniace v. Commerce Bank of Kansas City, N.A., 40 F.3d 264, 267 (8th Cir.1994) (citations omitted). “[Answering questions about a plan, noting changes" }, { "docid": "6364271", "title": "", "text": "construed to prohibit any fiduciary from— * * * * * * (2) receiving any reasonable compensation for services rendered, or for the reimbursement of expenses properly and actually incurred, in the performance of his duties with the plan; .. . 29 U.S.C. § 1108(b), (c). . This fact distinguishes this case from Brink v. DaLesio, 496 F.Supp. 1350 (D.Md.1980), rev’d in part, aff’d in relevant part, 667 F.2d 420 (4th Cir.1981), in which an insurance broker was found to be an ERISA fiduciary for purposes of requiring and ensuring that the amount of compensation he received was reasonable. The reason for his acquiring this status was that he was solely responsible for formulating the specifications when bids were solicited, he made the initial decision whether bids were to be solicited and he analyzed the bids and presented his advice to the trustees of a welfare fund. Id. at 1374-75. Thus he clearly exer cised with regard to the selection of a plan the kind of discretionary authority contemplated by the statute, unlike the situation in the case at hand where BC/BS had no role on behalf of the Plan in the selection of a hospital service organization for the Plan. (Under Iowa law, BC/BS is technically not an insurance company but rather a “hospital service corporation.” See Iowa Code § 514.1. The distinction is of no relevance either to this case or to BC/BS’s obligations under ERISA.) . Cusack has also stated in a letter supported by an affidavit to the Trustees’ counsel that his 1% commission or brokerage fee was known to all parties. Exhibit 1 to Reply Memorandum in Support of Defendants Blue Cross and Blue Shield of Iowa’s Cross Motion for Summary Judgment. . The simple claim that the amounts of excess premiums, although noted on the forms, are not described as reserves held for the benefit of the Trust begs the question at issue in the lawsuit: to whom does this money belong? For ERISA reporting purposes, all that is relevant is that the excess was made apparent to the Trustees, enabling them, for example," }, { "docid": "23647214", "title": "", "text": "more specifically, “that a person who is a named fiduciary with respect to control or management of the assets of the plan may appoint an investment manager or managers to manage (including the power to acquire and dispose of) any assets of a plan,” id. § 1102(c)(3). As relevant here, ERISA imposes fiduciary duties on \"[a]ny person who is a fiduciary with respect to a plan,” id. § 1102(a) (emphasis supplied), defined as follows: a person is a fiduciary with respect to a plan to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, (ii) he renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan. 29 U.S.C. § 1002(21)(A). As the Supreme Court has explained, this definition is framed \"not in terms of formal trusteeship, but in functional terms of control and authority over the plan, ... thus expanding the universe of persons subject to fiduciary duties.” Mertens v. Hewitt Assocs., 508 U.S. 248, 262, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993). Another feature of this definition is that if an entity acts in \"dual roles” as a non-fiduciary and as a fiduciary, such as being a \"plan sponsor and plan administrator,” then \"fiduciary duties under ERISA are implicated only when it acts in the latter capacity.” Beck v. PACE Int’l Union, 551 U.S. 96, 101, 127 S.Ct. 2310, 168 L.Ed.2d 1 (2007). . The Amended Complaint does not allege the particular percentage of the Citigroup BIG concentrated in mortgage-backed securities. . For ease of readability, we use the shorthand \"Morgan Stanley” to refer to defendant-appellee Morgan Stanley Investment Management Inc., whose parent company, Morgan Stanley, is not a party to this suit. .QIL apparently brought these claims as state-law claims because the Insurance Fund is not an employee benefit plan" }, { "docid": "7826065", "title": "", "text": "administrative services to the plan. Kessler substantiated Lay’s claim to limited administrative involvement in his testimony. Kessler stated at trial that Lay was probably unaware of his responsibilities as administrator and that he had assisted Lay in performing some administrative functions. These functions consisted of advice on the type of investments to be made in the Bankers Life Plan, preparation of documents for the Pension Benefit Guarantee Corporation [PBGC], and preparation of benefit display sheets indicating the monthly benefit for each plaintiff. The documents prepared by Kessler for submission to the PBGC list Kessler as “plan administrator” and his signature appears in the space reserved for that of the plan administrator. Since Congress took a functional approach in defining who was to be a fiduciary under ERISA, it is necessary to scrutinize each defendant in relation to the conduct alleged. Kessler was solely responsible for formulating the specifications of the proposed Bankers Life Plan which were then sent to another Bankers Life official, Richard Clark. Kessler gave investment and other advice to Lay regarding the Bankers Life plan. Moreover, he prepared benefit reports for participants in the program and proposed reports for the PBGC listing himself as administrator. These facts compel the conclusion that Kessler was exercising sufficient discretionary authority and control with regard to the administration of the plan as to make him a fiduciary. This conclusion comports with the opinions of those courts who have taken a broad view in deciding whether a particular provider of services should be a fiduciary under ERISA. These courts have held that plan administrators and consultants who effectively control or guide a plan’s management are fiduciaries. See, e.g., Freund v. Marshall & Ilsley Bank, 485 F.Supp. 629, 635 [W.D.Wis.1979]. In Brink v. DaLesio, 496 F.Supp. 1350, 1374 [D.Md.1980], rev’d in part, aff'd in relevant part, 667 F.2d 420 [4th Cir.1981], the court found that an insurance broker was a fiduciary for the purposes of ERISA since he was solely responsible for formulating the specification when bills were sought, making the initial decision whether bids were to be solicited on occasion, analyzing the" }, { "docid": "866664", "title": "", "text": "designated as trustees of the ERISA plan. Donovan v. Mercer, 747 F.2d 304, 309 (5th Cir.1984) (“while the designation of a person as a trustee is not disposi-tive, it is certainly not irrelevant”). Accord Pension Benefit Guarantee Corporation v. Solmsen, 671 F.Supp. 938, 944 (E.D.N.Y.1987). An officer can assume a fiduciary status even if the plan documents fail to state that the corporate officer is a named fiduciary. The Department of Labor regulations provide that the officer will be deemed a “fiduciary” according to the function he performs. See Preamble to ERISA Regs. § 2560.503-1 (Claims Procedure) (officer who reviews appeal of denied claim will be assumed to perform fiduciary role even in the absence of specific designation as such.) A plaintiff may establish that a corporate officer has assumed a fiduciary status by specifically alleging what functions enumerated in the statute were performed by that officer to make him a fiduciary. Blatt, supra. In Dardaganis v. Grace Capital, Inc., 889 F.2d 1237, 1242-43 (2d Cir.1989), for example, the president and chief executive officer of the corporation was deemed to be a fiduciary, and thus personally liable for breaches of fiduciary duty, only after it was shown that he personally exercised control and/or discretion over ERISA plan assets. See also, Brink v. DaLesio, 496 F.Supp. 1350, 1374 (D.M.D.1980), rev’d in part, aff'd in relevant part, 667 F.2d 420 (4th Cir.1981) (insurance broker was fiduciary for purposes of ERISA based on his “sole responsibility” for rendering investment advice) and Miller v. Lay Trucking Co., Inc., 606 F.Supp. 1326 (N.D.Ind.1985) (holding that one who is named in documents as plan administrator, signs documents as plan administrator, and assumes discretionary authority in the administration of the pension plan is a fiduciary). The officers argue that they are not fiduciaries within the meaning of the Act, and, as such, they were not bound by the fiduciary standards of ERISA § 404, 29 U.S.C. 1104, in recommending, designing and implementing an amendment to the Custom welfare plan. The majority opinion adopts their argument and holds that “section 3(21)(A) does not extend fiduciary status of a" }, { "docid": "7826066", "title": "", "text": "Bankers Life plan. Moreover, he prepared benefit reports for participants in the program and proposed reports for the PBGC listing himself as administrator. These facts compel the conclusion that Kessler was exercising sufficient discretionary authority and control with regard to the administration of the plan as to make him a fiduciary. This conclusion comports with the opinions of those courts who have taken a broad view in deciding whether a particular provider of services should be a fiduciary under ERISA. These courts have held that plan administrators and consultants who effectively control or guide a plan’s management are fiduciaries. See, e.g., Freund v. Marshall & Ilsley Bank, 485 F.Supp. 629, 635 [W.D.Wis.1979]. In Brink v. DaLesio, 496 F.Supp. 1350, 1374 [D.Md.1980], rev’d in part, aff'd in relevant part, 667 F.2d 420 [4th Cir.1981], the court found that an insurance broker was a fiduciary for the purposes of ERISA since he was solely responsible for formulating the specification when bills were sought, making the initial decision whether bids were to be solicited on occasion, analyzing the bids, presenting his analysis to the trustee of the welfare fund and providing investment advice to the trustees. In reaching its conclusion, the court relied on the legislative history of ERISA relating to the fiduciary issue: [t]he term ‘fiduciary’ ... includes persons to whom discretionary duties have been delegated by named fiduciaries, While the ordinary functions of consultants and advisers to employee benefit plans ... may not be considered as fiduciary functions, it must be recognized that there will be situations where such consultants and advisors may, because of their special expertise, in effect, be exercising discretionary authority or control with respect to the management or administration of such plan or some authority regarding its assets. In such cases, they are to be regarded as having assumed fiduciary obligations within the meaning of the applicable definition. 496 F.Supp. at 1375 quoting House Conf. Rep. No. 1280, 93rd Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Ad. News 4639, 5038, 5103. Plaintiffs do not specify what specific duty under § 404 of ERISA was breached." }, { "docid": "22294765", "title": "", "text": "section 1002(21)(A) of ERISA. Because the Trustee disputes the legal conclusion reached by the district court here, and not the factual findings which formed the basis for that conclusion, de novo review is appropriate. Likewise, even though the parties did not consider the standard of review which governs the conversion claim, the Court finds that it too is subject to de novo review, because, again, the Trustee does not dispute the factual predicate for that claim. Instead, he disagrees with the district court’s legal conclusion that the Terwilligers cannot be held liable under that theory. II. ERISA Fiduciary It is undisputed that the employees’ contributions to the Funds, but not the Union dues and assessments, were plan assets governed by ERISA. See 29 C.F.R. § 2510.3-102(a). Thus, the critical issue here is whether the district court erred in finding that the Terwilligers were not fiduciaries under ERISA when they used plan assets to pay Company creditors, rather than forwarding those assets to the Funds. As this Court has recognized, Congress intended ERISA’s definition of fiduciary “to be broadly construed.” Blatt v. Marshall & Lassman, 812 F.2d 810, 812 (2d Cir.1987). “Unlike the common law definition under which fiduciary status is determined by virtue of the position a person holds, ERISA’s definition is functional.” Mason Tenders Dist. Council Pension Fund v. Messera, 958 F.Supp. 869, 881 (S.D.N.Y.1997) (citing, inter alia, Mertens v. Hewitt Assocs., 508 U.S. 248, 262, 113 S.Ct. 2063, 2071-72, 124 L.Ed.2d 161 (1993)). Section 1002(21)(A) of ERISA defines a fiduciary in several ways. In relevant part, that statute provides that a “person is a fiduciary with respect to a plan,” and therefore subject to ERISA fiduciary duties, “to the extent” that he or she “exercises any authority or control respecting management or disposition of [plan] assets,” or, “has any discretionary authority or discretionary responsibility in the administration of such plan.” 29 U.S.C. § 1002(21)(A)(i) and (iii). In the present case, primarily on the basis that the Terwilligers did not administer the subject Funds, the district court found that they did not meet the statutory definition of a fiduciary." }, { "docid": "23506380", "title": "", "text": "provided investment advice to such an extent that they exercised effective control over the plan’s assets and used their positions as corporate insiders to involve the plan in transactions in which they had a personal interest), cert. denied, — U.S. -, 113 S.Ct. 979, 122 L.Ed.2d 133 (1993). Two cases involving insurance agents are illustrative. In Brink v. DaLesio, 496 F.Supp. 1350 (D.Md.1980), ajfd in relevant part, rev’d in part, 667 F.2d 420 (4th Cir.1981), the district court found an insurance agent to be a fiduciary, concluding that he exercised discretionary authority concerning the management of the funds and rendered investment advice for a fee. See id. at 1374-75. The court relied on cases that held plan administrators and consultants who effectively controlled or guided the management of plans to be fiduciaries. Id. at 1375 (citing cases). The court cited uncontradicted testimony that the insurance agent was solely responsible for formulating specifications when bids were solicited; made the initial decisions that bids would be solicited when optometric and dental services were added to the plans; decided which carriers would receive solicitations; and analyzed the bids that were received and presented his analysis to the trustees. Id. at 1374. The evidence showed that the trustees relied heavily on his advice concerning the amount of funds necessary to be maintained in the checking account. On the rare occasions when the reasonableness of the agent’s compensation was discussed, the agent advised the trustees that additional work was required as the funds expanded, and used this allegedly expanding workload to justify increasing his compensation. Id. at 1374-75. In Miller v. Lay Trucking Co., 606 F.Supp. 1326 (N.D.Ind.1985), the trial court found that an insurance agent was an ERISA fiduciary. The agent assisted the plan administrator — who the testimony of the insurance agent showed was probably unaware of his responsibilities as administrator — by giving him advice concerning the types of investments to be made, prepared documents for submission to the Pension Benefit Guaranty Corporation (“PBGC”), and prepared monthly benefit display sheets. Id. at 1334. The documents submitted to the PBGC listed the insurance" } ]

[ { "docid": "9971419", "title": "", "text": "but indisputable and its evidence on the third and perhaps most important aggravating circumstance — Mr. Grant’s potential for continued dangerousness even if incarcerated — -was potent. The government showed that Mr. Grant had a history of violent felonies well before the murder; it showed that he was fired from his position on the prison dining staff for fighting with another inmate; it showed that he had engaged in still other fights while in prison, including with a prison guard; and it showed, of course, that he killed a prison employee who was previously his friend. All of this suggested that Mr. Grant would continue to pose a danger to others, including civilian prison workers, even while he remained imprisoned. To be sure, Mr. Grant did respond with evidence of his amenability to treatment and evidence about his troubled childhood. But even viewed in its totality the case against him remained considerable. See Welch v. Workman, 639 F.3d 980, 1003 (10th Cir.2011) (finding victim impact statements harmless where, among other things, “the evidence supporting the three aggravating factors ... provided strong support for a death sentence”). Second is the nature of the particular statements before us. They conclude with the fine, “I believe [John Grant] should be given [or should receive] the death penalty.” No other embellishment is made on the subject. This court has held far more extensive pleas to lack’the required “substantial and injurious” effect on a jury’s verdict when the evidence against the defendant at sentencing was strong. See, e.g., DeRosa v. Workman, 679 F.3d 1196, 1236 (10th Cir.2012) (ruling harmless a statement that “[o]ur family has suffered enough because of this man. My family pleads with you to give the death penalty.”); Welch, 639 F.3d at 1000 (ruling harmless a statement that “[w]e can now only put our faith first in God and then our courts, and you, the jury. And I would beg you, please, don’t let this happen to another family. And, again, I say I feel that he should be imposed the death penalty.”); Welch v. Sirmons, 451 F.3d 675, 701 (10th Cir.2006)" } ]

[ { "docid": "21810451", "title": "", "text": "City. As the robbery neared its conclusion, one of the store’s employees—Kenneth Meers—took a fatal shot to the face. Although Mr. Littlejohn maintained that he did not fire the fatal shot, a jury convicted him of first-degree murder and sentenced him to death in 1994. In 1998, however, the Oklahoma Court of Criminal Appeals (“OCCA”) vacated and remanded his initial death sentence, because the trial court improperly admitted uncorroborated testimony suggesting that Mr. Littlejohn had confessed to the killing of Mr. Meers and also an unrelated murder. See Littlejohn v. State, 989 P.2d 901, 910-12 (Okla. Crim. App. 1998). At resen-tencing, a jury again sentenced Mr. Little-john to death, based on two aggravating circumstances: (1) his previous conviction for a violent felony, and (2) the fact that he posed a continuing threat to society. Following Mr. Littlejohn's unsuccessful efforts for state post-conviction relief, he filed a habeas petition under 28 U.S.C. § 2254 in federal district court. See Littlejohn v. Workman, No. CIV-05-225-M, 2010 WL 2218230 (W.D. Okla. May 27, 2010) (unpublished). As relevant here, he argued that (1) the prosecution violated his due process rights by failing to give adequate notice of certain evidence it intended to present at resentencing in support of the continuing-threat aggravator; (2) the introduction of the testimony of two witnesses violated his rights under the Confrontation Clause, because the prosecution failed to make the necessary showing of unavailability; (3) his trial counsel had been constitutionally ineffective for failing to investigate and present evidence of his organic brain damage; and (4) the cumulative weight of these errors entitled him to relief. The district court denied Mr. Little-john’s petition, and he brought his first appeal. In Littlejohn I, we affirmed the district court’s disposition of Mr. Little-john’s due-process and Confrontation Clause claims, but reversed the district court’s judgment as to the ineffective-assistance claim and vacated its judgment as to the cumulative-error claim, with instructions to the district court to conduct an evidentiary hearing on remand. See 704 F.3d at 822. Following an evidentiary hearing, the district court again denied Mr.. Littlejohn’s petition, see Littlejohn v. Trammell," }, { "docid": "21810483", "title": "", "text": "defense about the substance abuse of Mr. Littlejohn’s mother during her pregnancy and the lack of nurturing and attention that Mr. Littlejohn received as a child, and then explained the stunted development that Mr. Littlejohn suffered as a result.- To be sure, the- Supreme Court’s “cases ... emphasized the need for courts to consider the prejudicial effect of counsel’s failure to investigate [and presumably present] a viable mitigation theory even in the face of an otherwise reasonable mitigation defense.” Littlejohn I, 704 F.3d at 867. However, as demonstrated supra, the ostensibly “viable mitigation theory” omitted here was predicated on Dr. Saint Martin’s declaration, and his testimony at the evidentiary hearing made clear that this theory was on the verge of life support: specifically, his testimony “revealed] significant theoretical or factual holes that would make a finding of ... prejudice unsound.” Id. at 856. In sum, although Dr. Saint Martin’s initial declaration created a significant impression that Mr. Littlejohn may have been prejudiced by Mr.' Rowan’s' alleged failure to investigate and present evidence of organic brain damage in the sentencing phase, the testimony he provided in the hearing on remand demonstrated that Mr. Littlejohn’s organic-brain-damage diagnosis ultimately consisted of only two commonly diagnosed conditions: attention deficit disorder and an impulse-control disorder, neither of which was powerful enough on these facts to support a claim of prejudice. Put another way, the evidence presented at the evidentiary hearing did not reveal that Mr. Little-john’s alleged organic brain damage played a substantial role in engendering his life of criminal deviance; this conclusion strongly militates against a determination of Strickland prejudice. c But there is more bad news for Mr. Littlejohn. Aside from its inherent qualitative weaknesses, the introduction of Mr. Littlejohn’s organic-brain-damage evidence at resentencing likely would have been the impetus for developments harmful to his case. In this regard, in analyzing Strickland ’s prejudice prong, as previously noted, “we must consider not just the [omitted] mitigation evidence ... but also what the prosecution’s response to that evidence would have been.” [Michael] Wilson, 706 F.3d at 1306. In this case, the presentation of-Dr. Saint" }, { "docid": "21810487", "title": "", "text": "than helpful.”). Perhaps evidence suggestive of antisocial personality disorder would have otherwise been present in the case, as Mr. Littlejohn suggests. See Aplt.’s Opening Br. at 50 (“That Mr. Littlejohn had engaged in antisocial behavior was more than plain to all. That was not going to be shielded from the jurors.”). But the introduction of evidence of organic brain damage of the kind that Dr. St. Martin testified about would have given the State ample ground to underscore and highlight this antisocial personality evidence before the jury and, more importantly, to frame it in terms of his (untreatable) physiological conditions and not just his bad behavior. And the foregoing cases give us reason to believe that such evidence would likely have some aggravating effect here. Furthermore, the mitigating effect of Mr. Littlejohn’s evidence of organic brain damage would likely have been diminished by the lack of reliable treatment options for Mr. Littlejohn’s attention deficit and impulse-control disorders. As we explained in Littlejohn I, evidence of organic brain damage “could have been used [for its] powerful mitigating effect,” if it demonstrated that Mr. Littlejohn’s criminal past derived from a treatable physical condition, because his criminal past would no longer be “an accurate predictor of his future.” 704 F.3d at 865 (emphasis added); see also id. at 865 n.24 (noting that “such testimony [as found in Dr. Saint Martin’s declaration] would have offered a physiological explanation for Mr. Littlejohn’s deviant conduct and some assurance that, through medical, treatments, his criminal, violent past would not be prologue”). In other words, the presence of a treatable condition “could have indicated to a jury that Mr. Little-john [posed no] continuing threat.” Id. at 865 (emphasis added); see also Hooks, 689 F.3d at 1205 (“Diagnoses of specific mental illnesses ..., which are associated with abnormalities of the brain and can be treated with appropriate medication, are likely to [be] regarded by a jury as more mitigating than generalized personality disorders.... ” (alteration in original) (emphasis added) (quoting Wilson, 536 F.3d at 1094)). However, Dr. Saint Martin’s testimony likely would have left doubt in the minds of" }, { "docid": "17262499", "title": "", "text": "physical condition that is treatable, such that his criminal past is not an accurate predictor of his future. That is, it could have indicated to a jury that Mr. Littlejohn was not a continuing threat. See Victor Hooks, 689 F.3d at 1205 (“Diagnoses of specific mental illnesses ..., which are associated with abnormalities of the brain and can be treated with appropriate medication, are likely to [be] regarded by a jury as more mitigating than generalized personality disorders.... ” (alterations in original) (quoting Wilson, 536 F.3d at 1094) (internal quotation marks omitted)); cf. Gilson v. Simons, 520 F.3d 1196, 1249-50 (10th Cir.2008) (holding that evidence of organic brain disorder—seemingly with no evidence as to possible treatment—would not have altered the jury’s prejudice analysis because the “presentation of th[e] evidence would likely have weighed against [the petitioner] by erasing any lingering doubts that may have existed as to his role in [the underlying] murder, and by confirming the jury’s conclusion that he represented a continuing threat, even if confined in prison for life”). The jury that sentenced Mr. Littlejohn to death, however, was not offered anything of the sort through the testimony of Dr. Draper. Indeed, she suggested that Mr. Littlejohn did “[not] have any kind of mental illness,” State R., Vol. VI, Resentencing Tr. at 133, and that his developmental problems could not necessarily be cured by medication, see id. at 103. Dr. Draper did testify regarding the “very significant intrusion,” id. at 89, on fetal development that could have been caused by the drug abuse of Mr. Littlejohn’s mother. This testimony suggested the possibility that Mr. Littlejohn suffered physical brain damage—a possibility that we have noted supra that reasonably competent counsel would have investigated. And her testimony bears slight superficial resemblance to some of Dr. Saint Martin’s declaration averments regarding the implications for Mr. Littlejohn of the substance abuse of his mother. However, it is critical to note that Dr. Draper did not offer any opinion regarding whether Mr. Littlejohn in fact suffered pre-natal brain injuries and, indeed, she would not have been equipped to do so. Dr. Draper" }, { "docid": "17262493", "title": "", "text": "Opening Br. at 63; see Porter v. McCollum, 558 U.S. 30, 130 S.Ct. 447, 453, 175 L.Ed.2d 398 (2009) (per curiam) (holding that “[c]ounsel[’s] ... failure] to uncover and present any evidence of [the petitioner’s] mental health or mental impairment,” among other evidence, “did not reflect reasonable professional judgment”); see also Ferrell v. Hall, 640 F.3d 1199, 1233 (11th Cir.2011); Wilson, 536 F.3d at 1092-93; cf. Wackerly v. Workman, 580 F.3d 1171, 1181 (10th Cir.2009) (rejecting the petitioner’s claim that counsel was ineffective for failing to introduce evidence of an organic brain disorder because he proffered “no evidence” that any life event “resulted in any lasting brain damage” and other evidence clearly “suggested] that any injuries [he] suffered had little impact on his mental capacity”). In sum, there were patent “red flags” in this case, pointing to a possible physiological explanation for Mr. Littlejohn’s violent and anti-social behavior. Dr. Saint Martin’s declaration suggests that in fact Mr. Littlejohn suffered from physical brain damage. As we have noted, it is well-settled that such evidence is of considerable importance to a capital sentencing jury. See, e.g., Smith, 379 F.3d at 942 (noting that this type of evidence is “exactly the sort of evidence that garners the most sympathy from jurors”). Thus, a critical factor becomes whether Dr. Saint Martin’s declaration averments—if developed and probed through the adversary process—would prove worthy of belief. If so, then we would be hard-pressed to conclude that Mr. Littlejohn’s counsel was not constitutionally deficient in failing to follow up on the red flags. ii. Prejudice The prejudice inquiry in a capital sentencing case requires a showing that “there is a reasonable probability that, absent [counsel’s] errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Knighton v. Mullin, 293 F.3d 1165, 1178 (10th Cir.2002) (ellipsis in original) (quoting Strickland, 466 U.S. at 695, 104 S.Ct. 2052) (internal quotation marks omitted). In making the latter determination, we must consider “the strength of the State’s case and the number of aggravating factors the jury found to exist, as well as" }, { "docid": "21810491", "title": "", "text": "derived from the introduction of this evidence here likely would have been significantly diminished by the prosecution’s expected response. Given the shortcomings of Dr. Saint Martin’s.theory and evidence—revealed by his hearing testimony—we conclude that thére is no reasonable probability that the omitted mitigating evidence of organic brain damage would have altered the re-sentencing outcome. In reaching this conclusion, we have considered both the totality of the' evidence that was before the reséntencing jury and the evidence that' the prosecution likely would have presented in response to the omitted organic-' brain-damage evidence. See, e.g., Brooks, 689 F.3d at 1202 (“To assess prejudice arising out of counsel’s errors at a capital-sentencing proceeding, we must (reweigh the evidence in aggravation against the totality of available mitigating evidence.’ ” (quoting Young, 551 F.3d at 960)); of id. at 1200 (noting “[t]hat [Strickland prejudice] analysis is inherently fact-dependent and must take in the totality of evidence adduced at trial”). But Mr. Littlejohn urges us to keep in mind that “this was hardly a worst of the worst homicide case” and that a “[rjealistic potential for a non-death choice existed.” Aplt.’s Opening Br. at 47, 52. In the latter regard, he asserts that the “jurors’ request for further instruction on the life without parole sentence indicates they may have been seriously considering the same.” Id. at 52. However, we specifically rejected similar arguments in Littlejohn I. See 704 F.3d at 845 n.13. There, we said that “the prosecution presented a substantial amount of aggravating evidence” and also refuted the misguided notion that the death penalty is only constitutionally and properly imposed in egregious homicide cases. Id.) cf. Banks v. Workman, 692 F.3d 1133, 1141 (10th Cir. 2012) (“[C]ase law has made 'clear that capital punishment for felony murder charges is both constitutional and not infrequently imposed when the defendant was present during the murder and acted with reckless disregard for human life”). Furthermore, we noted “our doubts about Mr. Littlejohn’s conjectural inference about the jury’s view of the purported closeness of the case” that he made based, on its request, for further instruction1 about life without" }, { "docid": "17262503", "title": "", "text": "case, where only two aggravating factors were found. See, e.g., DeRosa, 679 F.3d at 1219-21 (detailing the extensively brutal nature of the underlying murder which served as a basis for a “heinous, atrocious, or cruel aggravator”); Knighton, 293 F.3d at 1178 (noting that the jury found three aggravating circumstances— (1) prior felony convictions, (2) “continuing threat,” and (3) the creation of a “great risk of death to more than one person”— the factual basis of which included, inter alia, an instance where the defendant broke into an innocent family’s home and held the residents hostage for an extended period of time); Humphreys, 261 F.3d at 1019 (noting that the jury found three aggravating factors). And, as noted already, the continuing-threat aggravator-—which was the focus of much of the State’s case— could have been diminished significantly by evidence of a treatable organic brain disorder. Thus, these cases do not stand in the way of a conclusion that Mr. Little-john has suffered prejudice. 3. Conclusion In sum, under a de novo standard, we conclude that Mr. Littlejohn has alleged a mitigation theory and supporting facts which, if true, would entitle him to relief under Strickland-viz., would justify us in concluding that his counsel was constitutionally deficient in failing to investigate and put on mitigating evidence concerning Mr. Littlejohn’s claimed physical brain injury and that, but for that failure, there is a reasonable probability that the jury would have selected a penalty less than death. Consequently, at this juncture, we are constrained to conclude that the district court erred in finding—as a matter of law—that there was no reasonable probability that at least one juror could have decided against death, in light of counsel’s failure to investigate and present a possible defense based on organic brain damage. We conclude that this case should be remanded to the district court to conduct an evidentiary hearing (and other appropriate proceedings) concerning Mr. Little-john’s ineffective-assistance claim. H. Cumulative Error Mr. Littlejohn argues that the cumulative effect of error in this case warrants habeas relief. The OCCA, however, summarily rejected Mr. Littlejohn’s cumulative error claim, finding that" }, { "docid": "17262502", "title": "", "text": "in counsel’s performance prejudiced him because, inter alia, the evidence presented adequately painted a detailed picture of him); Knighton, 293 F.3d at 1177-80 (finding that defense eoun- sel’s mitigation theory was extensive, and even though no evidence of organic brain damage was presented, there “[was] no[] ... reasonable probability that, had defense counsel presented ... [such evidence] the jury would have imposed a sentence less than death”); Humphreys, 261 F.3d at 1021 (finding no prejudice where counsel put on a reasonable mitigation defense, and additional evidence that “he ... suffered brain damage” would not have altered the verdict of death). However, DeRosa, Knighton and Humphreys, are distinguishable. First, the latter two cases were issued before the Supreme Court’s decisions in Rompilla and Sears—cases that emphasized the need for courts to consider the prejudicial effect of counsel’s failure to investigate a viable mitigation theory even in the face of an otherwise reasonable mitigation defense. See, e.g., Sears, 130 S.Ct. at 3266. Moreover, in all three cases, the aggravating evidence was more serious than in Mr. Little-john’s case, where only two aggravating factors were found. See, e.g., DeRosa, 679 F.3d at 1219-21 (detailing the extensively brutal nature of the underlying murder which served as a basis for a “heinous, atrocious, or cruel aggravator”); Knighton, 293 F.3d at 1178 (noting that the jury found three aggravating circumstances— (1) prior felony convictions, (2) “continuing threat,” and (3) the creation of a “great risk of death to more than one person”— the factual basis of which included, inter alia, an instance where the defendant broke into an innocent family’s home and held the residents hostage for an extended period of time); Humphreys, 261 F.3d at 1019 (noting that the jury found three aggravating factors). And, as noted already, the continuing-threat aggravator-—which was the focus of much of the State’s case— could have been diminished significantly by evidence of a treatable organic brain disorder. Thus, these cases do not stand in the way of a conclusion that Mr. Little-john has suffered prejudice. 3. Conclusion In sum, under a de novo standard, we conclude that Mr. Littlejohn" }, { "docid": "17262501", "title": "", "text": "was not a psychiatrist—like Dr. Saint Martin—or any other type of physician, for that matter. Therefore, she could not offer the jury any reliable and persuasive evidence on the question of whether Mr. Littlejohn suffered from an organic brain injury that could adversely affect his behavior. Absent any evidence indicating that Mr. Littlejohn’s past criminal conduct was due to physical causes that were treatable, the prosecution was free to look askance at the socioeconomic and psychological mitigating evidence that Mr. Littlejohn presented and argue that he was “violent” and “always [has] been.” Id., Vol. VII, Resentencing Tr. at 346; see, e.g., id. at 276 (“Does the fact that he was born to a drug addicted mother in some way reduce his accountability for his actions in 1992[?]”). It is true, of course, that we have previously found a lack of prejudice in some cases where counsel failed to present additional mental-health evidence in a capital sentencing proceeding. See, e.g., DeRosa, 679 F.3d at 1219-21 (holding that the petitioner had not established that any potential deficiency in counsel’s performance prejudiced him because, inter alia, the evidence presented adequately painted a detailed picture of him); Knighton, 293 F.3d at 1177-80 (finding that defense eoun- sel’s mitigation theory was extensive, and even though no evidence of organic brain damage was presented, there “[was] no[] ... reasonable probability that, had defense counsel presented ... [such evidence] the jury would have imposed a sentence less than death”); Humphreys, 261 F.3d at 1021 (finding no prejudice where counsel put on a reasonable mitigation defense, and additional evidence that “he ... suffered brain damage” would not have altered the verdict of death). However, DeRosa, Knighton and Humphreys, are distinguishable. First, the latter two cases were issued before the Supreme Court’s decisions in Rompilla and Sears—cases that emphasized the need for courts to consider the prejudicial effect of counsel’s failure to investigate a viable mitigation theory even in the face of an otherwise reasonable mitigation defense. See, e.g., Sears, 130 S.Ct. at 3266. Moreover, in all three cases, the aggravating evidence was more serious than in Mr. Little-john’s" }, { "docid": "21810492", "title": "", "text": "that a “[rjealistic potential for a non-death choice existed.” Aplt.’s Opening Br. at 47, 52. In the latter regard, he asserts that the “jurors’ request for further instruction on the life without parole sentence indicates they may have been seriously considering the same.” Id. at 52. However, we specifically rejected similar arguments in Littlejohn I. See 704 F.3d at 845 n.13. There, we said that “the prosecution presented a substantial amount of aggravating evidence” and also refuted the misguided notion that the death penalty is only constitutionally and properly imposed in egregious homicide cases. Id.) cf. Banks v. Workman, 692 F.3d 1133, 1141 (10th Cir. 2012) (“[C]ase law has made 'clear that capital punishment for felony murder charges is both constitutional and not infrequently imposed when the defendant was present during the murder and acted with reckless disregard for human life”). Furthermore, we noted “our doubts about Mr. Littlejohn’s conjectural inference about the jury’s view of the purported closeness of the case” that he made based, on its request, for further instruction1 about life without parole. Littlejohn I, 704 F.3d at 845 n.13. We find Mr. Littlejohn’s' resurrected arguments no more persuasive here. In sum, we conclude that Mr..Littlejohn was not prejudiced under Strickland by any ineffectiveness of his counsel in investigating and presenting organic-brain-damage evidence in his mitigation case. Consequently, we uphold the district court’s, denial of relief on Mr. Littlejohn’s ineffective-assistance claim. ill Finally, we address Mr. Littlejohn’s claim of cumulative error. On this issue, Mr. Littlejohn argues that even if we decline to grant relief on his ineffective-assistance claim, we should nonetheless reverse on the basis of cumulative error. The cumulative-error analysis addresses the possibility that “[t]he cumulative effect of two or more individually harmless errors has the potential to prejudice a defendant to the same extent as a single reversible error.” United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir. 1990) (en banc); see Hanson v. Sherrod, 797 F.3d 810, 852 (10th Cir. 2015) (“A cumulative-error analysis merely aggregates all the errors that individually have [been] found to be harmless, and therefore not reversible, and" }, { "docid": "21810490", "title": "", "text": "put him in a positive light with the jury. More specifically, the prosecution could have (and likely would have) introduced evidence that Mr. Littlejohn lied to mental-health examiners—on at least two prior occasions—presumably, to secure a favorable evaluation. In other words, the prosecution could have cast doubt on Dr. Saint Martin’s diagnosis, as well as painted Mr. Littlejohn as a liar, based on Mr. Littlejohn’s documented efforts to manipulate mental-health experts. 3 In sum, we conclude that Dr. Saint Martin’s testimony offered far less than suggested in his initial declaration. Indeed, although the initial declaration created the impression that Mr. Rowan omitted powerful mitigating evidence, the additional evi-dentiary development on remand demonstrated that Dr. Saint Martin’s organic-brain-damage theory ultimately derived from two concrete diagnoses: attention deficit disorder and an impulse-control disorder. As noted, courts routinely decline to attribute significant mitigating value to these commonly diagnosed conditions, and we believe that they would have been quar litatively weak in their mitigating effects on jurors, át least under the circumstances of this case. Furthermore, any mitigating value derived from the introduction of this evidence here likely would have been significantly diminished by the prosecution’s expected response. Given the shortcomings of Dr. Saint Martin’s.theory and evidence—revealed by his hearing testimony—we conclude that thére is no reasonable probability that the omitted mitigating evidence of organic brain damage would have altered the re-sentencing outcome. In reaching this conclusion, we have considered both the totality of the' evidence that was before the reséntencing jury and the evidence that' the prosecution likely would have presented in response to the omitted organic-' brain-damage evidence. See, e.g., Brooks, 689 F.3d at 1202 (“To assess prejudice arising out of counsel’s errors at a capital-sentencing proceeding, we must (reweigh the evidence in aggravation against the totality of available mitigating evidence.’ ” (quoting Young, 551 F.3d at 960)); of id. at 1200 (noting “[t]hat [Strickland prejudice] analysis is inherently fact-dependent and must take in the totality of evidence adduced at trial”). But Mr. Littlejohn urges us to keep in mind that “this was hardly a worst of the worst homicide case” and" }, { "docid": "21810485", "title": "", "text": "Martin’s theory and related facts would have opened the door for the prosecution to introduce (1) harmful evidence that Mr. Littlejohn suffered from an antisocial personality disorder, (2) testimony concerning the limited treatment options available for Mr. Littlejohn’s disorders, along with (3) damaging evidence regarding Mr. Littlejohn’s post-offense misconduct. Turning first to the evidence of antisocial personality disorder, in similar circumstances, we have characterized a petitioner’s potential for continued dangerousness, even if incarcerated, as “perhaps [the] most important aggravating circumstance” that juries consider in weighing the death penalty. Grant, 727 F.3d at 1017. Mr. Littlejohn has, as the district court noted, been diagnosed with an antisocial personality disorder, and although Dr. Saint Martin challenged the accuracy of this diagnosis, he acknowledged that Mr. Littlejohn displayed characteristics “consistent with anti-social personality disorder,” and that individuals with attention deficit disorder have, in any event, a greater likelihood of developing an antisocial personality disorder. R., Vol. Ill, at 176. Importantly, courts have characterized antisocial personality disorder as the prosecution’s “strongest possible evidence in rebuttal.” Evans v. Sec’y, Dep’t of Corr., 703 F.3d 1316, 1327 (11th Cir. 2013) (quoting Wong v. Belmontes, 558 U.S. 15, 25, 130 S.Ct. 383, 175 L.Ed.2d 328 (2009)). In other words, evidence of antisocial personality disorder tends to present an aggravating, rather than mitigating, circumstance in the sentencing context. See, e.g., Stankewitz v. Wong, 698 F.3d 1163, 1173 (9th Cir. 2012) (“We accept the state’s argument that some of the evidence [the petitioner] has proffered illustrates serious antisocial behavior, including several emotional and violent outbursts throughout his life. We also accept the state’s argument that such evidence may be aggravating, rather than mitigating.”); Cummings v. Sec’y for Dep’t of Corr., 588 F.3d 1331, 1368 (11th Cir. 2009) (“[The petitioner] is left mainly with a diagnosis of antisocial personality disorder, which is not mitigating but damaging.”); see also Correll v. Ryan, 539 F.3d 938, 964 (9th Cir. 2008) (O’Scannlain, J., dissenting) (“In sum, the psychological evidence, if presented, would have demonstrated only that Correll has an antisocial personality with mild depression. Such evidence has tremendous potential to be more harmful" }, { "docid": "17262498", "title": "", "text": "doesn’t make them killers. Choices make people killers.” State R., Vol. VII, Resentencing Tr., at 346. The potential prejudice flowing from this omission was heightened in these circumstances by the fact that a considerable portion of the State’s case in aggravation related to the continuing-threat aggravator. Evidence that Mr. Littlejohn possessed physical, neurological deficits of the type suggested by Dr. Saint Martin’s declaration averments would have offered a less blameworthy explanation of Mr. Litt-lejohn’s extensive criminal history. Furthermore, such evidence could have strongly militated against a conclusion that, even given that criminal history, Mr. Littlejohn was actually a continuing threat. Specifically, Dr. Saint Martin opined that, while the “deficits ... are irreparable, ... they are treatable.” R., Vol. 1, pt. I, at 172-73 (emphasis added); see id. at 173 (“[D]rug therapy is available to control the behavior and diminish the impulsivity, which creates most of [Mr. Littlejohn’s] problems in interacting with society.”). This kind of evidence could have been used to powerful mitigating effect, indicating that Mr. Littlejohn’s criminal past is a product of a physical condition that is treatable, such that his criminal past is not an accurate predictor of his future. That is, it could have indicated to a jury that Mr. Littlejohn was not a continuing threat. See Victor Hooks, 689 F.3d at 1205 (“Diagnoses of specific mental illnesses ..., which are associated with abnormalities of the brain and can be treated with appropriate medication, are likely to [be] regarded by a jury as more mitigating than generalized personality disorders.... ” (alterations in original) (quoting Wilson, 536 F.3d at 1094) (internal quotation marks omitted)); cf. Gilson v. Simons, 520 F.3d 1196, 1249-50 (10th Cir.2008) (holding that evidence of organic brain disorder—seemingly with no evidence as to possible treatment—would not have altered the jury’s prejudice analysis because the “presentation of th[e] evidence would likely have weighed against [the petitioner] by erasing any lingering doubts that may have existed as to his role in [the underlying] murder, and by confirming the jury’s conclusion that he represented a continuing threat, even if confined in prison for life”). The jury that" }, { "docid": "17262497", "title": "", "text": "must connect the dots between, on the one hand, a defendant’s mental problems, life circumstances, and personal history and, on the other, his commission of the crime in question.” Victor Hooks, 689 F.3d at 1204 (emphasis added); see id. (collecting cases). Evidence that an organic brain disorder was a substantial factor in engendering Mr. Littlejohn’s life of deviance probably would have been a significant favorable input for Mr. Littlejohn in the jury’s deci-sionmaking calculus. And, under the particular circumstances of this case, there is a reasonable probability that such evidence would have led at least one juror to support a sentence less than death. Yet, here the jury received virtually no explanation of how Mr. Littlejohn’s alleged mental problems played into the murder. And without this explanation, the prosecution was able to frame the mitigation defense as a mere collection of the social circum stances of Mr. Littlejohn’s upbringing— circumstances that, while unfortunate, do not excuse murder. In this regard, the prosecutor stated, “It is unfortunate that children are raised in [rough] environment[s], but it doesn’t make them killers. Choices make people killers.” State R., Vol. VII, Resentencing Tr., at 346. The potential prejudice flowing from this omission was heightened in these circumstances by the fact that a considerable portion of the State’s case in aggravation related to the continuing-threat aggravator. Evidence that Mr. Littlejohn possessed physical, neurological deficits of the type suggested by Dr. Saint Martin’s declaration averments would have offered a less blameworthy explanation of Mr. Litt-lejohn’s extensive criminal history. Furthermore, such evidence could have strongly militated against a conclusion that, even given that criminal history, Mr. Littlejohn was actually a continuing threat. Specifically, Dr. Saint Martin opined that, while the “deficits ... are irreparable, ... they are treatable.” R., Vol. 1, pt. I, at 172-73 (emphasis added); see id. at 173 (“[D]rug therapy is available to control the behavior and diminish the impulsivity, which creates most of [Mr. Littlejohn’s] problems in interacting with society.”). This kind of evidence could have been used to powerful mitigating effect, indicating that Mr. Littlejohn’s criminal past is a product of a" }, { "docid": "21810460", "title": "", "text": "Littlejohn’s ineffective-assistance claim “may have merit.” Id. at 856 (emphasis added). We noted that “[evidence that an organic brain disorder was a. substantial factor in engendering Mr. Littlejohn’s life of deviance probably would have been a significant favorable input for Mr. Little-john in the jury’s decisionmaking calculus.” Id. at 864. Evidence of organic brain damage, we explained, could have strengthened Mr. Littlejohn’s mitigation case by offering “at least a partial explanation” for his extensive criminal history—and importantly, one grounded in his physical, neurological deficits. Id. . In addition, the evidence of organic brain damage could have weakened the prosecution’s case in support of the continuing-threat aggravator, by “offer[ing] a less blameworthy explanation of Mr. Litt-lejohn’s extensive criminal history” and by providing some suggestion that Mr. Little-john suffered from treatable deficits. I'd. at 865. Along these lines, we emphasized that evidence of organic mental deficits “ranks among the most powerful types of mitigation evidence available” and stressed that such evidence is qualitatively different—in significant ways—from the social-environment evidence that we typically are called on to consider in capital habeas cases, Id. at 864. Based on the current record, we concluded as to the prejudice showing that Dr. Saint Martin’s declaration created “a reasonable probability that [the presentation of] such evidence would have led at least one juror to support a sentence less than death.” Id. In other words,. we determined—under the limited circumstances developed at that time—that “[e]vidence that an organic brain disorder was a substantial factor in engendering Mr. Little-john’s life of deviance probably would have been a significant favorable input for Mr. Littlejohn in the jury’s decisionmaking calculus,” and that Mr. Rowan’s failure to investigate and present organic-brain-damage evidence (as sketched by Dr. Saint Martin) would have caused Mr. Littlejohn prejudice. Id.; see id: at 865-67. However, we also underscored that further factual development would be necessary before a definitive conclusion could be reached regarding the merits of Mr. Litt-lejohn’s ineffective-assistance claim. Id. at 856. Indeed, we emphasized the “highly fact-bound” nature of Mr. Littlejohn’s particular ineffective-assistance claim, and thus explained that “[a] further exploration of the substance of" }, { "docid": "21810504", "title": "", "text": "a categorical matter—is likely at the apex of its potency when a psychiatrist (or other qualified physician), like Dr. Saint Martin, provides it; such a person can actually offer a medical opinion regarding whether a petitioner has suffered brain damage. See id. at 865-66 (“[I]t is critical to note that Dr. Draper did not offer any opinion regarding whether Mr. Littlejohn in. fact suffered pre-natal brain injuries and, indeed, she would not have been equipped to do so. Dr. Draper was not a psychiatrist—like Dr. Saint Martin—or any other type of physician, for that matter.”). Therefore, it seems reasonable to assume that the failure to investigate and present evidence of organic brain damage through the testimony of a physician may have engendered some modest prejudice. But, as we emphasized at the start, the prejudice analysis must always focus on the precise nature of the alleged organic brain damage. And, when we do that here, for the reasons explicated supra, we are unwilling to accord Mr. Littlejohn more than an assumption of modest prejudice: in brief, Dr. Saint Martin’s qualitatively weak organic-brain-damage evidence warrants nothing more under the circumstances of this case, particularly given the likelihood of robust rebuttal evidence from the State. From a purely additive or sum-of-the parts perspective, the three dashes of modest prejudice that we have assumed here—i.e,, related to the Meers testimony, the testimony of the two 1994 witnesses, and Mr. Rowan’s mitigation presentation— hardly constitute, in the aggregate, a recipe for the kind of prejudice that would render Mr. Littlejohn’s resentencing proceeding fundamentally unfair or cause us to have grave doubts about whether the errors affected the jurors’ verdict, especially when viewed in the context of the State’s substantial case in aggravation, See Grant, 727 F.3d at 1026 (“[N]one of the three errors was anything more than modest on its own terms. Adding them together undoubtedly leads to a somewhat less modest sum. But even still they do not collectively call into question the compelling case the government put on.\",,.”); see also Littlejohn I, 704 F.3d at n.13 (noting that “the prosecution presented a substantial" }, { "docid": "21810459", "title": "", "text": "district court thus concluded that the evidence that Dr. Saint Martin could have presented “would not have had a pervasive effect on the jury’s decision”; as a result, it found “no reasonable probability that the balancing of the aggravating and mitigating evidence would have led the jury to return a sentence other than death.” Id. at *30. In Littlejohn I, we reversed the district court’s judgment on- this claim. At the outset, we detailed two unique procedural features of Mr. Littlejohn’s ineffective-assistance claim. First, we emphasized that the absence of a state-court “merits adjudication” or a “procedural default” on the ineffective-assistance claim triggered a merits-based de novo review. 704 F.3d at 855. Second, we determined that Mr. Litt-lejohn’s essentially unchallenged diligence in developing the factual basis for his ineffective-assistance claim relieved him of the obligation of satisfying the “strict standards for an evidentiary hearing” under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Id. at 858. Undertaking our own de novo review, we concluded—based on the averments in Dr, Saint Martin’s declaration—that Mr. Littlejohn’s ineffective-assistance claim “may have merit.” Id. at 856 (emphasis added). We noted that “[evidence that an organic brain disorder was a. substantial factor in engendering Mr. Littlejohn’s life of deviance probably would have been a significant favorable input for Mr. Little-john in the jury’s decisionmaking calculus.” Id. at 864. Evidence of organic brain damage, we explained, could have strengthened Mr. Littlejohn’s mitigation case by offering “at least a partial explanation” for his extensive criminal history—and importantly, one grounded in his physical, neurological deficits. Id. . In addition, the evidence of organic brain damage could have weakened the prosecution’s case in support of the continuing-threat aggravator, by “offer[ing] a less blameworthy explanation of Mr. Litt-lejohn’s extensive criminal history” and by providing some suggestion that Mr. Little-john suffered from treatable deficits. I'd. at 865. Along these lines, we emphasized that evidence of organic mental deficits “ranks among the most powerful types of mitigation evidence available” and stressed that such evidence is qualitatively different—in significant ways—from the social-environment evidence that we typically are called on to consider" }, { "docid": "21810484", "title": "", "text": "damage in the sentencing phase, the testimony he provided in the hearing on remand demonstrated that Mr. Littlejohn’s organic-brain-damage diagnosis ultimately consisted of only two commonly diagnosed conditions: attention deficit disorder and an impulse-control disorder, neither of which was powerful enough on these facts to support a claim of prejudice. Put another way, the evidence presented at the evidentiary hearing did not reveal that Mr. Little-john’s alleged organic brain damage played a substantial role in engendering his life of criminal deviance; this conclusion strongly militates against a determination of Strickland prejudice. c But there is more bad news for Mr. Littlejohn. Aside from its inherent qualitative weaknesses, the introduction of Mr. Littlejohn’s organic-brain-damage evidence at resentencing likely would have been the impetus for developments harmful to his case. In this regard, in analyzing Strickland ’s prejudice prong, as previously noted, “we must consider not just the [omitted] mitigation evidence ... but also what the prosecution’s response to that evidence would have been.” [Michael] Wilson, 706 F.3d at 1306. In this case, the presentation of-Dr. Saint Martin’s theory and related facts would have opened the door for the prosecution to introduce (1) harmful evidence that Mr. Littlejohn suffered from an antisocial personality disorder, (2) testimony concerning the limited treatment options available for Mr. Littlejohn’s disorders, along with (3) damaging evidence regarding Mr. Littlejohn’s post-offense misconduct. Turning first to the evidence of antisocial personality disorder, in similar circumstances, we have characterized a petitioner’s potential for continued dangerousness, even if incarcerated, as “perhaps [the] most important aggravating circumstance” that juries consider in weighing the death penalty. Grant, 727 F.3d at 1017. Mr. Littlejohn has, as the district court noted, been diagnosed with an antisocial personality disorder, and although Dr. Saint Martin challenged the accuracy of this diagnosis, he acknowledged that Mr. Littlejohn displayed characteristics “consistent with anti-social personality disorder,” and that individuals with attention deficit disorder have, in any event, a greater likelihood of developing an antisocial personality disorder. R., Vol. Ill, at 176. Importantly, courts have characterized antisocial personality disorder as the prosecution’s “strongest possible evidence in rebuttal.” Evans v. Sec’y, Dep’t" }, { "docid": "21810486", "title": "", "text": "of Corr., 703 F.3d 1316, 1327 (11th Cir. 2013) (quoting Wong v. Belmontes, 558 U.S. 15, 25, 130 S.Ct. 383, 175 L.Ed.2d 328 (2009)). In other words, evidence of antisocial personality disorder tends to present an aggravating, rather than mitigating, circumstance in the sentencing context. See, e.g., Stankewitz v. Wong, 698 F.3d 1163, 1173 (9th Cir. 2012) (“We accept the state’s argument that some of the evidence [the petitioner] has proffered illustrates serious antisocial behavior, including several emotional and violent outbursts throughout his life. We also accept the state’s argument that such evidence may be aggravating, rather than mitigating.”); Cummings v. Sec’y for Dep’t of Corr., 588 F.3d 1331, 1368 (11th Cir. 2009) (“[The petitioner] is left mainly with a diagnosis of antisocial personality disorder, which is not mitigating but damaging.”); see also Correll v. Ryan, 539 F.3d 938, 964 (9th Cir. 2008) (O’Scannlain, J., dissenting) (“In sum, the psychological evidence, if presented, would have demonstrated only that Correll has an antisocial personality with mild depression. Such evidence has tremendous potential to be more harmful than helpful.”). Perhaps evidence suggestive of antisocial personality disorder would have otherwise been present in the case, as Mr. Littlejohn suggests. See Aplt.’s Opening Br. at 50 (“That Mr. Littlejohn had engaged in antisocial behavior was more than plain to all. That was not going to be shielded from the jurors.”). But the introduction of evidence of organic brain damage of the kind that Dr. St. Martin testified about would have given the State ample ground to underscore and highlight this antisocial personality evidence before the jury and, more importantly, to frame it in terms of his (untreatable) physiological conditions and not just his bad behavior. And the foregoing cases give us reason to believe that such evidence would likely have some aggravating effect here. Furthermore, the mitigating effect of Mr. Littlejohn’s evidence of organic brain damage would likely have been diminished by the lack of reliable treatment options for Mr. Littlejohn’s attention deficit and impulse-control disorders. As we explained in Littlejohn I, evidence of organic brain damage “could have been used [for its] powerful" }, { "docid": "15455189", "title": "", "text": "intelligence. Mr. Smith specifically quoted Dr. Saint Martin’s conclusions regarding the effect of drug use on his developing brain: [T]he clinical picture for Mr. Smith is ... childhood/adolescent brain insult caused by substance abuse. The substances linked to neural damage in Mr. Smith’s developing brain are PCP, alcohol and marijuana. PCP is known to produce dissociative states and symptoms similar to schizophrenia. Long term use of PCP is neurotoxic in rat and primate brains, and in humans it inhibits the brain’s ability to learn new information. The tests indicate non-specific brain damage affecting his attention, calculation, and short term memory. These ... neuropsychological deficits could be due to Mr. Smith’s substance use, especially PCP.... (Alteration and omissions in original.) Mr. Smith also quoted Dr. Mash’s opinion that “[t]he early exposure to PCP and [Mr. Smith’s] chronic use contributed to diffuse impairment of cognitive functioning” and “Mr. Smith’s [early] exposure [and chronic use of] “wet’ undoubtedly contributed to developmental brain abnormalities....” (Alterations and omission in original.) The OCCA rejected Mr. Smith’s ineffective-assistance claim. Limiting its analysis to prejudice, the OCCA concluded this evidence has a “double-edged quality,” and noted that a “a jury presented with evidence that the defendant is a chronic substance abuser might draw a negative inference from that evidence just as easily as it might find it mitigating.” Smith II, 245 P.3d at 1242-43. The OCCA also noted, in the context of Mr. Smith’s case, “such evidence might bolster a conclusion that the defendant represents a continuing threat to society, one of the aggravating circumstances charged.” Id. at 1243. The OCCA accordingly concluded that Mr. Smith failed to demonstrate “a reasonable probability that the jury would have reached a different sentencing result if it had been presented with evidence of [Mr. Smith’s] chronic use of PCP and its allegedly attendant brain damage.” Id. Mr. Smith raises three challenges to the OCCA’s conclusion. First, he argues the OCCA unreasonably “presupposed that Mr. Smith’s organic brain damage and low intelligence [were] caused by long-term daily use of [PCP].” (Alterations in original, internal quotation marks omitted.) He contends that Dr. Saint" } ]

[ { "docid": "7897346", "title": "", "text": "work. The case law is clear that it is the plaintiffs inconsistent representations which have pre-clusive effect”); Harden v. Delta Air Lines, Inc., 900 F.Supp. 493, 497 (S.D.Ga.1995) (court found it “ ‘incredible’ that a[n] [ADA] plaintiff would claim that he was discriminated against by his employer for fading to make reasonable accommodations while representing to various entities that he was unable to work”; it concluded there was “no reasonable accommodation that can be given to allow a totally disabled person, as plaintiff claims he was, to perform the essential functions of any job”); Cheatwood v. Roanoke Industries, 891 F.Supp. 1528, 1538 (N.DAla. 1995) (plaintiff testified at workers’ compensation trial that he could not even perform basic household tasks; court found plaintiff could not make out prima facie case under ADA as he was “bound by his prior testimony that he could not perform the essential functions of his prior job”); Garcia-Paz v. Swift Textiles, Inc., 873 F.Supp. 547, 555 (D.Kan.1995) (ADA plaintiff consistently represented her inability to perform material job duties in applying for and receiving long-term disability insurance and social security disability benefits; court found that “based on these unambiguous and seemingly informed representations, plaintiff is estopped from now claiming that she could perform the essential functions of her position”) (emphasis in original); Reigel v. Kaiser Foundation Health Plan of North Carolina, 859 F.Supp. 963, 970 (E.D.N.C.1994) (court found ADA plaintiff had failed in her summary judgment burden on the “qualified individual” issue where plaintiff was collecting disability benefits based on her inability to work while arguing she could perform essential job functions; court concluded that she “cannot speak out of both sides of her mouth with equal vigor and credibility”). But see Oswald, 894 F.Supp. at 996 (distinguishing Reigel on basis of existence of genuine issue of material fact regarding doctor’s assessment of plaintiffs abilities to perform essential functions of job in question). Although a job reassignment is a recognized form of reasonable accommodation, in light of her testimony and that of her experts, Pegues would not have been able to perform the essential functions of any" } ]

[ { "docid": "5311957", "title": "", "text": "(Humphreys, M.J.); Trotter v. B & S Aircraft Parts & Accessories, Inc., No. 94-1404, 1996 WL 473837 at *9 (D.Kan. Aug. 13,1996) (Theis, S.J.); Smith v. Midland Brake, Inc., 911 F.Supp. 1351, 1357-61 (D.Kan.1995) (Saffels, S.J.); Lamury v. Boeing Co., No. 94-1225, 1995 WL 643835 at *6 (D.Kan.1995) (Kelly, S.J.); Nguyen v. IBP, Inc. 905 F.Supp. 1471, 1484-85 (D.Kan.1995) (Crow, J.); Ricks v. Xerox Corp., 877 F.Supp. 1468, 1477 n. 9 (D.Kan.1995) (Lungstrum, J.), aff'd, 96 F.3d 1453 (table) (10th Cir.1996); Garcia-Paz v. Swift Textiles, Inc., 873 F.Supp. 547, 555 (D.Kan.1995) (Vratil, J.). A majority, if not all, of the circuit courts that have addressed this issue have reached the same conclusion. Blanton v. Inco Alloys International, Inc., 108 F.3d 104, 108-09 (6th Cir.1997) (plaintiff sued under state disability law); Budd v. ADT Security Systems, Inc., 103 F.3d 699, 700 (8th Cir.1996); McNemar v. The Disney Store Inc., 91 F.3d 610, 619 (3d Cir.1996), cert. denied, — U.S.-, 117 S.Ct. 958, 136 L.Ed.2d 845 (1997) (citing with approval Garcia-Paz and Smith, 91 F.3d at 618); Rissetto v. Plumbers and Steamfitters Local 343, 94 F.3d 597, 604-05 (9th Cir.1996) (court held in a non-ADA ease that because of a worker’s compensation settlement based on plaintiffs assertion that she could not work, she was judicially estopped from asserting legal claims based on her ability to work; citing with approval the Kansas cases of Smith and Garcia-Paz, 94 F.3d at 604 n. 4); August v. Offices Unlimited, Inc., 981 F.2d 576, 580-84 (1st Cir.1992). Plaintiff cites to the case of Overton v. Reilly, 977 F.2d 1190 (7th Cir.1992) to show contrary authority. However, all that the court held in Overton was that the finding of disability by social security was not dispositive in a Rehabilitation Act ease where the plaintiff was handicapped. 977 F.2d at 1196. The court noted evidence that the plaintiff was able to perform his work. More importantly, the issue of whether a plaintiff who represents that he or she is disabled in order to receive disability payments should be estopped from claiming that he or she can perform the" }, { "docid": "4407022", "title": "", "text": "pounds with his right arm,” and argues Seari-ver cannot now claim that he is not disabled. (Plaintiff’s Objection, Instrument No. 27, Exh. A, Findings of Fact and Conclusions of Law, at 17, ¶ 4). However, the fact that the court found that Richards is permanently disabled from working as an Able Seaman does not have the same legal significance as a finding that Richards is \"disabled” under the ADA. The ADA requires a higher standard of proof in determining whether or not a plaintiff is disabled. Seariver may have stipulated that Richards is permanently disabled in his right arm, but that does not amount to a concession that Richards is \"disabled” within the meaning of the ADA. See accompanying text. . The doctrine of judicial estoppel \"applies where a party tries to contradict in a second lawsuit his sworn statement in previous litigation. It is intended to protect the integrity of the judicial process, avoid inconsistent results, and prevent litigants from playing fast and loose in order to secure an advantage.” Grant v. Lone Star Co., 21 F.3d 649, 651 n. 2 (5th Cir.1994), citing United States ex rel. Am. Bank v. C.I.T. Constr., 944 F.2d 253, 258-59 (5th Cir.1991); Brandon v. Interfirst Corp., 858 F.2d 266, 268 (5th Cir.1988). Although the doctrine has not been adopted uniformly by the federal courts, this Court's use of the doctrine is a matter of judicial discretion. Nichols v. Scott, 69 F.3d 1255, 1272 & n. 33 (5th Cir.1995), cert. denied sub nom. Nichols v. Johnson, 518 U.S. 1022, 116 S.Ct. 2559, 135 L.Ed.2d 1076 (1996). Recent cases from this circuit have declined to apply estoppel theory, opting instead to view such statements as a factor in the overall analysis of whether a plaintiff is a qualified individual within the meaning of the ADA. Morton v. GTE North Inc., 922 F.Supp. 1169, 1183 (N.D.Tex.1996); Pegues v. Emerson Electric Co., 913 F.Supp. 976, 981 (N.D.Miss.1996). However, district court cases from various circuits have found that prior statements of total or permanent disability barred a claim for discrimination under the ADA. McNemar v. Disney Stores," }, { "docid": "22580776", "title": "", "text": "F.2d at 241 (quoting Scarano, 203 F.2d at 513). We are satisfied that the district court’s application of judicial estoppel qualifies under the two-part threshold inquiry articulated in Ryan Operations: (1) Is the party’s present position inconsistent with a position formerly asserted? (2) If so, did the party assert either or both of the inconsistent positions in bad faith — i.e., “with intent to play fast and loose” with the court? Ryan Operations, 81 F.3d at 361. Clearly McNemar has asserted inconsistent positions regarding his ability to work. Before the Social Security Administration he and his physicians have certified under penalty of perjury that he was totally and permanently disabled. He made similar representations when he applied for New Jersey state disability benefits. And when applying for an exemption from making payments on his student loans, he represented to the state of Pennsylvania that he was unable to work and earn money. Thus, McNemar has represented to one federal agency and to the agencies of two different states that he was totally disabled and unable to work — while now, in claiming relief under the American Disabilities Act, he states that he is “a qualified person with a disability who, with or without reasonable accommodation, can perform the essential functions of a job” as contemplated by 42 U.S.C. §§ 12111(8), 12112(a). Moreover, well reasoned decisions have judicially estopped plaintiffs in situations similar to this one from “speak[ing] out of both sides of [their] mouth with equal vigor and credibility before [the] court.” Reigel v. Kaiser Foundation Health Plan of N.C., 859 F.Supp. 963, 970 (E.D.N.C.1994). See, e.g., August v. Offices Unlimited, Inc., 981 F.2d 576, 582-84 (1st Cir.1992); Garcia-Paz v. Swift Textiles, 873 F.Supp. 547, 554 (D.Kan. 1995); Kennedy v. Applause, Inc., 1994 WL 740765 at *3-*4 (C.D.Cal. Dec. 6, 1994). McNemar’s statements on his disability benefits application are “unconditional assertions as to his disability”; he should not now be permitted to “qualify those statements where the application itself is unequivocal.” Smith v. Midland Brake, Inc. 911 F.Supp. 1351, 1361 (D.Kan.1995) (citing Scarano, 203 F.2d at 513). V. McNemar alleges" }, { "docid": "22580777", "title": "", "text": "to work — while now, in claiming relief under the American Disabilities Act, he states that he is “a qualified person with a disability who, with or without reasonable accommodation, can perform the essential functions of a job” as contemplated by 42 U.S.C. §§ 12111(8), 12112(a). Moreover, well reasoned decisions have judicially estopped plaintiffs in situations similar to this one from “speak[ing] out of both sides of [their] mouth with equal vigor and credibility before [the] court.” Reigel v. Kaiser Foundation Health Plan of N.C., 859 F.Supp. 963, 970 (E.D.N.C.1994). See, e.g., August v. Offices Unlimited, Inc., 981 F.2d 576, 582-84 (1st Cir.1992); Garcia-Paz v. Swift Textiles, 873 F.Supp. 547, 554 (D.Kan. 1995); Kennedy v. Applause, Inc., 1994 WL 740765 at *3-*4 (C.D.Cal. Dec. 6, 1994). McNemar’s statements on his disability benefits application are “unconditional assertions as to his disability”; he should not now be permitted to “qualify those statements where the application itself is unequivocal.” Smith v. Midland Brake, Inc. 911 F.Supp. 1351, 1361 (D.Kan.1995) (citing Scarano, 203 F.2d at 513). V. McNemar alleges that in terminating his employment, Disney violated the Americans With Disabilities Act and the New Jersey Law Against Discrimination. Because the New Jersey statute relies on the same analytical framework as does the federal act, the district court addressed these claims together. Dist. Ct. Op. at 6-7 (citing Shaner v. Horizon Bancorp., 116 N.J. 433, 561 A.2d 1130, 1132 (1989)). To qualify for protection against discrimination under Title I of the ADA, a plaintiff must prove that he or she is a “qualified person with a disability who, with or without reasonable accommodation, can perform the essential functions of the job.” 42 U.S.C. §§ 12111(8), 12112(a). Accordingly, a person unable to work is not intended to be, and is not, covered by the ADA. See 42 U.S.C. §§ 423(d); see also H.R.Rep. No. 101-485(11), 101st Cong.2d. Sess. 71 (1990), reprinted in 1990 U.S.C.C.A.N. 353; H.R.Rep. No. 101-485(III), 101st Cong.2d. Sess. 35-36 (1990), reprinted in 1990 U.S.C.C.A.N. 458. The New Jersey statute contains a similar requirement, prohibiting discrimination against handicapped persons “unless the nature and extent" }, { "docid": "16993984", "title": "", "text": "714 F.Supp. 351, 358 (N.D.Ill.1989) (application process for social security benefits constitutes prior legal proceeding for purposes of judicial estoppel). The Plaintiff does hot dispute that he successfully advanced his “total disability” assertion not only before the long term disability plan administrator, but also before the Social Security Administration. With equal enthusiasm, Mr. Harris proclaimed at trial that he was ready, willing, and most importantly, able to perform the essential functions of an oil field pumper. These positions are at best inconsistent. Federal courts facing similar situations have ruled as a matter of law that the plaintiff was not a “qualified individual with a disability” within the meaning of the ADA See August v. Offices Unlimited, Inc., 981 F.2d 576 (1st Cir.1992) (plaintiff who certified on form for disability benefits that he was “totally disabled” was precluded as a matter of law from arguing that he was a “qualified handicapped person” under Massachusetts law); Nguyen v. IBP, Inc., 905 F.Supp. 1471 (D.Kan.1995) (holding that employee who claimed and certified in social security proceedings that he was disabled and could not perform the duties of his job was judicially estopped from claiming that he was capable of performing essential functions of his job for purposes of an ADA claim); Garcia-Paz v. Swift Textiles, Inc., 873 F.Supp. 547 (D.Kan.1995) (plaintiff who certified on long term disability benefits application that she was unable to perform material duties of work was estopped from arguing that she was a qualified individual under the ADA); Reigel v. Kaiser Foundation Health Plan of N.C., 859 F.Supp. 963 (E.D.N.C.1994) (injury claims of permanent disability for purposes of receiving disability insurance payments es-topped claimant from arguing that she was qualified under the ADA); Kennedy v. Applause, Inc., 1994 WL 740765 (C.D.Cal. Dec. 6, 1994) (plaintiff who represented for purposes of obtaining disability benefits that she was completely disabled was estopped from arguing that she was qualified under the ADA). The objective of the doctrine of judicial estoppel is to prevent situations from arising in which one of two related decisions has to be wrong because a party took opposite" }, { "docid": "8680247", "title": "", "text": "for social security disability benefits and for New Jersey disability benefits that he was totally and permanently disabled was “judicially es-topped from arguing that he is qualified to perform the duties of the position involved.”); Garcia-Paz v. Swift Textiles, Inc., 873 F.Supp. 547, 555 (D.Kan.1995) (plaintiff with multiple sclerosis who on applications for long-term disability insurance benefits and social security benefits affirmed that she was disabled from her former work was “es-topped from claiming otherwise.”); Kennedy v. Applause, Inc., No. 94-5344, 1994 U.S. Dist. LEXIS 19216, 1994 WL 740765 (C.D.Cal. Dec. 7, 1994) (plaintiff with chronic fatigue syndrome who on forms for state disability benefits and social security disability benefits certified that she was disabled was prevented from arguing otherwise.); see also August v. Offices Unlimited, Inc., 981 F.2d 576, 580-81 (1st Cir.1992) (plaintiff who attested on disability insurance benefit forms that he was “totally disabled” could not establish that he was a “qualified handicapped person” under Massachusetts law); Beauford v. Father Flanagan’s Boys’ Home, 831 F.2d 768, 770 (8th Cir.1987) (plaintiff who told employer that she was unable to work because of physical and mental problems and then applied for disability insurance benefits based on the same was considered as having admitted that she was not a qualified handicapped individual under the Rehabilitation Act of 1973), cert. denied, 485 U.S. 938, 108 S.Ct. 1116, 99 L.Ed.2d 277 (1988); Reigel v. Kaiser Foundation Health Plan of North Carolina, 859 F.Supp. 963, 967-70 (E.D.N.C.1994) (plaintiff with shoulder injury who in statements for disability insurance benefits had certified her total disability was unable to demonstrate that she was qualified to perform the essential functions of her job). It is uncontroverted that Nguyen claimed and certified in the social security proceedings that he was disabled as of March 13, 1993, and testified therein that he could not perform the duties of his former work. Based on his representations and testimony and the medical evidence, he was awarded social security benefits. It is impossible for Nguyen to have been both disabled under social security law and able to perform the essential functions of his" }, { "docid": "5311956", "title": "", "text": "that she had been unable to work since October 25, 1992 as a result of numbness and weakness caused by multiple sclerosis.” Under the ALJ’s evaluation of the evidence, the ALJ stated that “[s]ince the claimant’s impairments meet the level of severity required by the Listings, Regulation 416.920(d) requires that she be found ‘disabled’ as of October 25, 1992.” The ALJ then made the finding that the Regulation required that she be found disabled as of October 25, 1992. The decision of the ALJ was that, as of the date of the application filed on March 31, 1993, plaintiff was disabled under the Social Security Act. Every court that has considered the question in this district has held that when an employee represents that he or she is totally disabled in order to receive disability benefits, that employee is estopped from claiming that he or she can perform the essential functions of the job with or without reasonable accommodation. Hiebert v. IFR Systems, Inc., No. 95-1319, slip op. at 12 (D. Kan. April 10, 1997) (Humphreys, M.J.); Trotter v. B & S Aircraft Parts & Accessories, Inc., No. 94-1404, 1996 WL 473837 at *9 (D.Kan. Aug. 13,1996) (Theis, S.J.); Smith v. Midland Brake, Inc., 911 F.Supp. 1351, 1357-61 (D.Kan.1995) (Saffels, S.J.); Lamury v. Boeing Co., No. 94-1225, 1995 WL 643835 at *6 (D.Kan.1995) (Kelly, S.J.); Nguyen v. IBP, Inc. 905 F.Supp. 1471, 1484-85 (D.Kan.1995) (Crow, J.); Ricks v. Xerox Corp., 877 F.Supp. 1468, 1477 n. 9 (D.Kan.1995) (Lungstrum, J.), aff'd, 96 F.3d 1453 (table) (10th Cir.1996); Garcia-Paz v. Swift Textiles, Inc., 873 F.Supp. 547, 555 (D.Kan.1995) (Vratil, J.). A majority, if not all, of the circuit courts that have addressed this issue have reached the same conclusion. Blanton v. Inco Alloys International, Inc., 108 F.3d 104, 108-09 (6th Cir.1997) (plaintiff sued under state disability law); Budd v. ADT Security Systems, Inc., 103 F.3d 699, 700 (8th Cir.1996); McNemar v. The Disney Store Inc., 91 F.3d 610, 619 (3d Cir.1996), cert. denied, — U.S.-, 117 S.Ct. 958, 136 L.Ed.2d 845 (1997) (citing with approval Garcia-Paz and Smith, 91 F.3d at 618);" }, { "docid": "5077286", "title": "", "text": "Garcia-Paz. v. Swift Textiles, Inc., 873 F.Supp. 547, 554 (D.Kan.1995) (plaintiff with multiple sclerosis who certified on long-term disability benefits application that she was “unable to perform material duties of work” was estopped from arguing that she was qualified under ADA); Kennedy v. Applause, Inc., 1994 WL 740765 (C.D.Cal. Dee. 6, 1994) (plaintiff with chronic fatigue syndrome who represented for purposes of obtaining disability benefits that she was completely disabled was estopped from arguing that she was qualified under ADA); Reigel v. Kaiser Foundation Health Plan of N.C., 859 F.Supp. 963, 967-70 (E.D.N.C. 1994) (plaintiff with shoulder injury who claimed for purposes of receiving disability insurance payments that she was permanently disabled was estopped from arguing that she was qualified under the ADA). 1995 WL 390051 at 3; cf., Matter of Davidson, 947 F.2d 1294, 1297 (5th Cir.1991) (quasi estoppel precluded debtor husband from claiming that his payment obligations to non-debtor wife were not in the nature of alimony and thus were dischargeable, where husband had treated payments as alimony for tax purposes and his wife had reported same as income); Matter of Nowak, 183 B.R. 568, 570 (Bkrtcy.D.Neb.1995). Quoting the Reigel court, 859 F.Supp. at 967-70 (“Plaintiff now seeks money damages from [her employer] on her assertion that she was physically willing and able to work during the same period that she was regularly collecting disability payments on her assertion that she was physically unable to work”), the McNemar court held that McNe-mar “cannot be simultaneously ‘unable to work’ and ‘qualified to perform the duties of his position.’ ” 1995 WL 390051 at *3. Once estopped, McNemar could not show that he was able to perform his job at all, irrespective of any accommodation. Accordingly, the court granted McNemar’s employer summary judgment on his ADA claim. See also Cheatwood, 891 F.Supp. at 1538. In this case Mr. Fussell admitted under oath that he is “[a] hundred percent” disabled within the meaning of the Social Security Act and therefore is receiving full disability benefits. Fussell Dep. at 87. The GPA points to that assertion in arguing that he is judicially" }, { "docid": "16993985", "title": "", "text": "was disabled and could not perform the duties of his job was judicially estopped from claiming that he was capable of performing essential functions of his job for purposes of an ADA claim); Garcia-Paz v. Swift Textiles, Inc., 873 F.Supp. 547 (D.Kan.1995) (plaintiff who certified on long term disability benefits application that she was unable to perform material duties of work was estopped from arguing that she was a qualified individual under the ADA); Reigel v. Kaiser Foundation Health Plan of N.C., 859 F.Supp. 963 (E.D.N.C.1994) (injury claims of permanent disability for purposes of receiving disability insurance payments es-topped claimant from arguing that she was qualified under the ADA); Kennedy v. Applause, Inc., 1994 WL 740765 (C.D.Cal. Dec. 6, 1994) (plaintiff who represented for purposes of obtaining disability benefits that she was completely disabled was estopped from arguing that she was qualified under the ADA). The objective of the doctrine of judicial estoppel is to prevent situations from arising in which one of two related decisions has to be wrong because a party took opposite positions and won both times. Chaveriat v. Williams Pipe Line Co., 11 F.3d 1420, 1427-28 (7th Cir.1993). A “qualified individual with a disability” is defined by the ADA as “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8) (emphasis added). It is impossible for Mr. Harris to have been both totally disabled under social security law and able to perform the essential functions of his position under the ADA To allow Mr. Harris to assert that he was able to perform the duties of his employment with Marathon at the same time he collected disability benefits, awarded as a result of his representations that he could no longer work, would countenance a fraud, either on this court or on the federal agency that awarded him those benefits. It is the opinion of this Court that Mr. Harris was estopped from presenting evidence at trial which contradicted his earlier claims of total disability. Therefore, as" }, { "docid": "6636838", "title": "", "text": "he was totally disabled); Beauford v. Father Flanagan’s Boys’ Home, 831 F.2d 768, 770-71 (8th Cir.1987) (holding that plaintiff could not be “otherwise qualified handicapped individual” under the Rehabilitation Act of 1973 where she had represented to disability insurance carrier that she was unable to work and received disability benefits); Erit v. Judge, Inc., 961 F.Supp. 774, 778-79 (D.N.J.1997); Morris v. Siemens, 928 F.Supp. 486, 495 (D.N.J.1996) (plaintiff estopped from claiming that termination was in violation of NJLAD where “summary judgment record [was] replete with certifications of [p]laintiff that she was unable to work and incapable of performing the duties of her job at the time she was discharged.”); Lewis v. Zilog, Inc., 908 F.Supp. 931, 945 (N.D.Ga.1995), affd, 87 F.3d 1331 (11th Cir.1996); Harden v. Delta Air Lines, 900 F.Supp. 493, 496-97 (S.D.Ga.1995); Garcia-Paz v. Swift Textiles, Inc., 873 F.Supp. 547, 554-56 (D.Kan.1995); Reigel v. Kaiser Found. Health Plan, 859 F.Supp. 963, 967-70 (E.D.N.C.1994). But see Smith v. Dovenmuehle Mortgage. Inc., 859 F.Supp. 1138, 1141-43 (N.D.Ill.1994) (holding that although plaintiffs representation of his disability in order to receive benefits may not estop him from asserting a handicap discrimination claim, such representations will be evidence used to determine whether plaintiff was, in fact, able to perform his job). Thus, Defendant is entitled to summary judgment on the issue whether Plaintiff is a qualified individual with a disability and, necessarily, Plaintiffs claim under the ADA. 3. Plaintiff Has Not Shown that Defendant Unlawfully Discriminated Against Him Based on His Disability Plaintiffs contention that Defendant treated him adversely because of his disability is based primarily on his assertion that he can perform the essential functions of his position without any accommodation. However, Plaintiffs reliance on this assertion is misplaced. For reasons discussed earlier, the Court already has found that Plaintiff fails to present sufficient evidence that he can perform the essential functions of his position without accommodation. This brings the Court to Plaintiffs final argument concerning the parties’ factual dispute over when Defendant knew that Plaintiffs disability was permanent. Defendant contends that it terminated Plaintiffs “light duty” status in June 1995 because" }, { "docid": "22580779", "title": "", "text": "of the handicap reasonably precludes the performance of the particular employment.” N.J.S.A. § 10:5— 4.1. Thus to be covered by these statutes, McNemar had to prove that at all material times he was able to perform the essential functions of his job, with or without accommodation. See McDonald v. Commonwealth of Pennsylvania, 62 F.3d 92, 96 (3d Cir. 1995). In arriving at its decision, the district court observed that “most federal courts agree that an employee who represents on a benefits application that he is disabled is judicially estopped from arguing that he is qualified to perform the duties of the position involved.” Dist. Ct. Op. at 9; see, e.g., August v. Offices Unlimited, Inc., 981 F.2d 576, 582-84 (1st Cir.1992) (plaintiff who certified on form for disability benefits that he was “totally disabled” was precluded as a matter of law from arguing that he was a “qualified handicapped person” under Massachusetts law); Garcia-Paz v. Swift Textiles, 873 F.Supp. 547, 554 (D.Kan.1995) (plaintiff with multiple sclerosis who certified on long-term disability benefits application that she was “unable to perform material duties of work” was estopped from arguing that she was qualified individual under ADA); Kennedy v. Applause, Inc., 1994 WL 740765 at *3-*4 (C.D.Cal. Dec. 6, 1994) (plaintiff with chronic fatigue syndrome who represented for purposes of obtaining disability benefits that she was completely disabled was estopped from arguing that she was qualified under ADA); Reigel, 859 F.Supp. at 967-70 (plaintiff with shoulder injury who claimed for purposes of receiving disability insurance payments that she was prematurely disabled was estopped from arguing that she was qualified under ADA). Thus even though this court has not previously applied judicial estoppel to facts similar to those before us here, other federal courts have addressed analogous factual situations, and many have judicially estopped the plaintiffs in those situations from “speak[ing] out of both sides of [their] mouth with equal vigor and credibility before [the] court.” Reigel, 859 F.Supp. at 970. That prece-dential basis, and this court’s teachings on judicial estoppel, clearly support the discretion of the district court to estop a party from" }, { "docid": "5077283", "title": "", "text": "that the GPA failed to consider reassignment to a vacant position as a means of accommodating him. To that end, plaintiff points to no legal authority requiring the GPA to contact him, post-termination, and offer him every job that opened up. Stated differently, if Fussell could not be bothered to stay in contact with the GPA’s Human Resources Department and inquire about alternative forms of employment, then the GPA was entitled to do likewise. The ADA is not a job-insurance policy. Rhodes, 890 F.Supp. at 962. Hence, plaintiffs insistence that the GPA should have contacted him about a “hazardous materials handler” position that opened up within ninety days of his discharge, Fussell Aff. ¶ 10, affords him no grounds for relief. H. ADA — Estoppel The Ricks court also addressed an issue that arises upon the ADA plaintiffs representation to a government or private agency that he is totally and permanently disabled, resulting in the receipt of permanent disability benefits. More specifically, that court took issue with Ricks’ claim that he was “qualified” to perform the essential functions of his position when in fact he had previously claimed entitlement to long-term disability benefits and thus, by definition, was unable to “be employed in any substantial and gainful work either inside or outside of Xerox.” Ricks, 877 F.Supp. at 1477. Mr. Ricks therefore was arguably estopped from now claiming he was in fact a qualified individual. Cf., Garcia-Paz. v. Swift Textiles, Inc., 873 F.Supp. 547, 555-57 (D.Kan.1995) (Plaintiff, her counsel, and her physician consistently represented that she was entitled to long-term disability benefits because she could not perform the material duties of her job. Having collected benefits, based on the unambiguous, informed representations, plaintiff was held estopped from claiming in her lawsuit that she could perform the essential functions of her position). Ricks, 877 F.Supp. at 1477 n. 9. McNemar v. The Disney Stores, Inc., 1995 WL 390051 at 4 (E.D.Pa.1995), applied the same doctrine. McNemar claimed that his employment was terminated not because he had, as his employer claimed, violated store policy, but instead because he had AIDS. The court" }, { "docid": "19704134", "title": "", "text": "the misrepresentation of facts to either the social security administration or the courts. See Harden v. Delta Air Lines, 900 F.Supp. 493, 497 (S.D.Ga.1995) (stating it is “ ‘incredible’ that a plaintiff would claim that he was discriminated against by his employer for failing to make reasonable accommodations while representing to various entities that he was unable to work”). The Court is of the opinion that Johnson should be judicially estopped from claiming that he is a qualified individual with a disability after representing himself as totally disabled before the Social Security Administration. The doctrine of judicial estoppel applies when a party tries to contradict in a legal proceeding his sworn statement in a previous legal proceeding. The doctrine is aimed at protecting the integrity of the judicial process, avoiding inconsistent results, and preventing a party from playing fast and loose with facts. See United States ex rel. Am Bank v. C.I.T. Construction, 944 F.2d 253, 258-59 (5th Cir.1991). It is the sanctity of the oath and the integrity of the process that lies at the heart of the doctrine of judicial estoppel and “the truth is no less important to an administrative body acting in a quasi-judicial capacity than it is a to a court of law.” Rissetto v. Plumbers and Steamfitters Local 348, 94 F.3d 597 (9th Cir.1996). The Court has determined that Johnson’s previous representations of total disability made before an administrative agency fall within the purview of the doctrine of judicial estoppel, and that he should not be allowed to hold himself out as a qualified individual-under the ADA after having claimed total disability before the SSA. “The fact that the choice between obtaining federal or state disability benefits and suing under the ADA is difficult does not entitle one to make false representations with impunity. Nothing in the reasoned jurisprudence of judicial estoppel goes this far.” McNemar v. Disney Store; Inc., 91 F.3d 610 (3rd Cir.1996). Johnson also brings a claim for intentional infliction of emotional distress. To prevail on a claim for intentional infliction of emotional distress, Johnson must prove that:\" (1) Defendants acted" }, { "docid": "6636837", "title": "", "text": "Plaintiff from Contending that He is a Qualified Individual with a - Disability Alternatively, even assuming arguendo that Plaintiff presents sufficient evidence to create jury issues whether he can perform the essential functions of his position with or without reasonable accommodation, the Court finds that Plaintiff is estopped from arguing that he is a qualified individual with a disability. The evidence shows that prior to filing this lawsuit, Plaintiff applied for long-term disability benefits, contending that he was no longer able to perform his job duties. This is exactly the opposite of what Plaintiff contends here. Numerous federal courts, including this one, have concluded that an employee who represents on a benefits application that he is permanently disabled is judicially estopped from arguing that he is qualified to perform the duties of the position involved. See, e.g., August v. Offices Unlimited, Inc., 981 F.2d 576, 581-84 (1st Cir.1992) (summary judgment granted in favor of employer on plaintiffs claim for handicap discrimination under the Massachusetts anti-discrimination statute since plaintiff had made statements to disability insurer that he was totally disabled); Beauford v. Father Flanagan’s Boys’ Home, 831 F.2d 768, 770-71 (8th Cir.1987) (holding that plaintiff could not be “otherwise qualified handicapped individual” under the Rehabilitation Act of 1973 where she had represented to disability insurance carrier that she was unable to work and received disability benefits); Erit v. Judge, Inc., 961 F.Supp. 774, 778-79 (D.N.J.1997); Morris v. Siemens, 928 F.Supp. 486, 495 (D.N.J.1996) (plaintiff estopped from claiming that termination was in violation of NJLAD where “summary judgment record [was] replete with certifications of [p]laintiff that she was unable to work and incapable of performing the duties of her job at the time she was discharged.”); Lewis v. Zilog, Inc., 908 F.Supp. 931, 945 (N.D.Ga.1995), affd, 87 F.3d 1331 (11th Cir.1996); Harden v. Delta Air Lines, 900 F.Supp. 493, 496-97 (S.D.Ga.1995); Garcia-Paz v. Swift Textiles, Inc., 873 F.Supp. 547, 554-56 (D.Kan.1995); Reigel v. Kaiser Found. Health Plan, 859 F.Supp. 963, 967-70 (E.D.N.C.1994). But see Smith v. Dovenmuehle Mortgage. Inc., 859 F.Supp. 1138, 1141-43 (N.D.Ill.1994) (holding that although plaintiffs representation of his disability" }, { "docid": "4407023", "title": "", "text": "Co., 21 F.3d 649, 651 n. 2 (5th Cir.1994), citing United States ex rel. Am. Bank v. C.I.T. Constr., 944 F.2d 253, 258-59 (5th Cir.1991); Brandon v. Interfirst Corp., 858 F.2d 266, 268 (5th Cir.1988). Although the doctrine has not been adopted uniformly by the federal courts, this Court's use of the doctrine is a matter of judicial discretion. Nichols v. Scott, 69 F.3d 1255, 1272 & n. 33 (5th Cir.1995), cert. denied sub nom. Nichols v. Johnson, 518 U.S. 1022, 116 S.Ct. 2559, 135 L.Ed.2d 1076 (1996). Recent cases from this circuit have declined to apply estoppel theory, opting instead to view such statements as a factor in the overall analysis of whether a plaintiff is a qualified individual within the meaning of the ADA. Morton v. GTE North Inc., 922 F.Supp. 1169, 1183 (N.D.Tex.1996); Pegues v. Emerson Electric Co., 913 F.Supp. 976, 981 (N.D.Miss.1996). However, district court cases from various circuits have found that prior statements of total or permanent disability barred a claim for discrimination under the ADA. McNemar v. Disney Stores, Inc., No. 94-6997, 1995 WL 390051 (E.D.Pa. June 30, 1995); Garcia-Paz v. Swift Textiles, Inc., 873 F.Supp. 547, 554 (D.Kan.1995); Kennedy v. Applause, Inc., No. 94_5344, 1994 WL 740765 (C.D.Cal. Dec. 6, 1994); Reigel v. Kaiser Foundation Health Plan of N.C., 859 F.Supp. 963 (E.D.N.C.1994); see also McNeill v. Atchison, Topeka & Santa Fe Ry., 878 F.Supp. 986 (S.D.Tex.1995). In McNemar v. Disney Stores, Inc., 1995 WL 390051 at *3, for example, the court determined that \"an employee who represents on a benefits application that he is disabled is judicially estopped from arguing that he is qualified to perform the duties of the position involved.” The McNemar court entered summary judgment on an ADA disability claim against an employee with AIDS who had received Social Security benefits after representing that he was totally and permanently disabled from doing work. Finding that the plaintiff could not be simultaneously \"unable to do work” for purposes of the administrative determination and \"qualified to perform the duties of his position” for purposes of the ADA claim, the district court" }, { "docid": "5077284", "title": "", "text": "the essential functions of his position when in fact he had previously claimed entitlement to long-term disability benefits and thus, by definition, was unable to “be employed in any substantial and gainful work either inside or outside of Xerox.” Ricks, 877 F.Supp. at 1477. Mr. Ricks therefore was arguably estopped from now claiming he was in fact a qualified individual. Cf., Garcia-Paz. v. Swift Textiles, Inc., 873 F.Supp. 547, 555-57 (D.Kan.1995) (Plaintiff, her counsel, and her physician consistently represented that she was entitled to long-term disability benefits because she could not perform the material duties of her job. Having collected benefits, based on the unambiguous, informed representations, plaintiff was held estopped from claiming in her lawsuit that she could perform the essential functions of her position). Ricks, 877 F.Supp. at 1477 n. 9. McNemar v. The Disney Stores, Inc., 1995 WL 390051 at 4 (E.D.Pa.1995), applied the same doctrine. McNemar claimed that his employment was terminated not because he had, as his employer claimed, violated store policy, but instead because he had AIDS. The court held that McNemar could not show that he was, with or without reasonable accommodation, able to perform the job in question, because he had sworn, on his applications for state disability and Social Security disability benefits, that he was “totally and permanently disabled.” 1995 WL 390051 at 3. In addition, McNemar’s physician had certified the same in order to exempt him from repaying his student loans. Id. Thus, reasoned the McNemar court, McNemar was estopped from arguing that he is “qualified” to perform the job in question. Id. The court cited other eases reaching the same result: [Mjost federal courts agree that an employee who represents on a benefit application that he is disabled is judicially es-topped from arguing that he is qualified to perform the duties of the position involved. See, e.g., August v. Offices Unlimited, Inc., 981 F.2d 576 (1st. Cir.1992) (plaintiff who certified on form for disability benefits that he was “totally disabled” was precluded as a matter of law from arguing that he was a “qualified handicapped person” under Massachusetts law);" }, { "docid": "5077285", "title": "", "text": "held that McNemar could not show that he was, with or without reasonable accommodation, able to perform the job in question, because he had sworn, on his applications for state disability and Social Security disability benefits, that he was “totally and permanently disabled.” 1995 WL 390051 at 3. In addition, McNemar’s physician had certified the same in order to exempt him from repaying his student loans. Id. Thus, reasoned the McNemar court, McNemar was estopped from arguing that he is “qualified” to perform the job in question. Id. The court cited other eases reaching the same result: [Mjost federal courts agree that an employee who represents on a benefit application that he is disabled is judicially es-topped from arguing that he is qualified to perform the duties of the position involved. See, e.g., August v. Offices Unlimited, Inc., 981 F.2d 576 (1st. Cir.1992) (plaintiff who certified on form for disability benefits that he was “totally disabled” was precluded as a matter of law from arguing that he was a “qualified handicapped person” under Massachusetts law); Garcia-Paz. v. Swift Textiles, Inc., 873 F.Supp. 547, 554 (D.Kan.1995) (plaintiff with multiple sclerosis who certified on long-term disability benefits application that she was “unable to perform material duties of work” was estopped from arguing that she was qualified under ADA); Kennedy v. Applause, Inc., 1994 WL 740765 (C.D.Cal. Dee. 6, 1994) (plaintiff with chronic fatigue syndrome who represented for purposes of obtaining disability benefits that she was completely disabled was estopped from arguing that she was qualified under ADA); Reigel v. Kaiser Foundation Health Plan of N.C., 859 F.Supp. 963, 967-70 (E.D.N.C. 1994) (plaintiff with shoulder injury who claimed for purposes of receiving disability insurance payments that she was permanently disabled was estopped from arguing that she was qualified under the ADA). 1995 WL 390051 at 3; cf., Matter of Davidson, 947 F.2d 1294, 1297 (5th Cir.1991) (quasi estoppel precluded debtor husband from claiming that his payment obligations to non-debtor wife were not in the nature of alimony and thus were dischargeable, where husband had treated payments as alimony for tax purposes and his" }, { "docid": "4407024", "title": "", "text": "Inc., No. 94-6997, 1995 WL 390051 (E.D.Pa. June 30, 1995); Garcia-Paz v. Swift Textiles, Inc., 873 F.Supp. 547, 554 (D.Kan.1995); Kennedy v. Applause, Inc., No. 94_5344, 1994 WL 740765 (C.D.Cal. Dec. 6, 1994); Reigel v. Kaiser Foundation Health Plan of N.C., 859 F.Supp. 963 (E.D.N.C.1994); see also McNeill v. Atchison, Topeka & Santa Fe Ry., 878 F.Supp. 986 (S.D.Tex.1995). In McNemar v. Disney Stores, Inc., 1995 WL 390051 at *3, for example, the court determined that \"an employee who represents on a benefits application that he is disabled is judicially estopped from arguing that he is qualified to perform the duties of the position involved.” The McNemar court entered summary judgment on an ADA disability claim against an employee with AIDS who had received Social Security benefits after representing that he was totally and permanently disabled from doing work. Finding that the plaintiff could not be simultaneously \"unable to do work” for purposes of the administrative determination and \"qualified to perform the duties of his position” for purposes of the ADA claim, the district court noted that \"Plaintiff in the case sub judice cannot speak out of both sides of [his] mouth with equal vigor and credibility before this court. Plaintiff now seeks money damages from [his employer] on [his] assertion that [he] was physically willing and able to work during the same period that [he] was regularly collecting disability payments on [his] assertion that [he] was physically unable to work.” McNemar, 1995 WL 390051 at *4 (quoting Reigel v. Kaiser Foundation Health Plan of N.C., 859 F.Supp. 963, 970 (E.D.N.C.1994)). The district court in McNemar stated: [fjirst, while this Court recognizes the apparent unfairness of forcing individuals to choose between seeking disability benefits and suing under the ADA, there is no indication that either the United States Congress or the New Jersey legislature intended to provide disability benefits to persons capable of obtaining gainful employment, and it is province of the legislature rather than this Court to authorize such double recovery. Second, since a disabled person who believes he has been the victim of discrimination retains the option of" }, { "docid": "8680246", "title": "", "text": "lamp assembler. The ALJ concluded that Nguyen was under a “disability” as that term is used in social security laws. Federal courts facing similar situations have ruled as a matter of law that the plaintiff was not a “qualified individual with a disability.” Cheatwood v. Roanoke Industries, 891 F.Supp. 1528 (N.D.Ala.1995) (and cases cited therein). The courts agree that an employee who represents on a benefits application that he is disabled and unable to perform the duties of their former jobs is judicially estopped from arguing that he is capable of performing the essential functions of his former work. See, e.g., Cheatwood v. Roanoke Industries, 891 F.Supp. 1528 (plaintiff with back injury who testified in workers’ compensation proceeding to physical problems and work restrictions was “bound by his prior testimony that he could not perform the essential functions of his prior job.”); McNemar v. Disney Stores, No. 94-6997, 1995 WL 390051, at *3-5, 1995 U.S.Dist. LEXIS 9454, at *9-*15 (E.D.Pa. June 30, 1995) (plaintiff with AIDS who certified under penalty of perjury on his applications for social security disability benefits and for New Jersey disability benefits that he was totally and permanently disabled was “judicially es-topped from arguing that he is qualified to perform the duties of the position involved.”); Garcia-Paz v. Swift Textiles, Inc., 873 F.Supp. 547, 555 (D.Kan.1995) (plaintiff with multiple sclerosis who on applications for long-term disability insurance benefits and social security benefits affirmed that she was disabled from her former work was “es-topped from claiming otherwise.”); Kennedy v. Applause, Inc., No. 94-5344, 1994 U.S. Dist. LEXIS 19216, 1994 WL 740765 (C.D.Cal. Dec. 7, 1994) (plaintiff with chronic fatigue syndrome who on forms for state disability benefits and social security disability benefits certified that she was disabled was prevented from arguing otherwise.); see also August v. Offices Unlimited, Inc., 981 F.2d 576, 580-81 (1st Cir.1992) (plaintiff who attested on disability insurance benefit forms that he was “totally disabled” could not establish that he was a “qualified handicapped person” under Massachusetts law); Beauford v. Father Flanagan’s Boys’ Home, 831 F.2d 768, 770 (8th Cir.1987) (plaintiff who told employer" }, { "docid": "22172615", "title": "", "text": "and \"minority”, since only a few cases hold categorically that prior judicial adoption is required for application of judicial estoppel. In the AFN court's view, this terminology is misleading; most of the cases can be read as saying that judicial estoppel is particularly appropriate when the party succeeded in the prior proceeding, but they do not really say that the doctrine cannot be applied absent such prior success. See Allen v. Zurich Ins. Co., 667 F.2d 1162, 1167 (4th Cir.1982) (\"Though perhaps not necessarily confined to situations where the party asserting the earlier contrary position there prevailed, it is obviously more appropriate in that situation.”). In addition, the Third Circuit recently added itself to the “minority” side of the ledger, holding emphatically that success in the prior proceeding is not required. Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 361 (3d Cir.1996). . Many courts have estopped litigants who had claimed to be totally disabled in applying for disability benefits from claiming to be \"qualified” under the Americans with Disabilities Act. See Pegues v. Emerson Electric Co., 913 F.Supp. 976, 981 (N.D.Miss.1996); Smith v. Midland Brake, Inc., 911 F.Supp. 1351, 1358 (D.Kan.1995); Lewis v. Zilog, Inc., 908 F.Supp. 931, 945 (N.D.Ga.1995); Cheatwood v. Roanoke Industries, 891 F.Supp. 1528, 1538 (N.D.Ala.1995); McNemar v. The Disney Stores, Inc., 1995 WL 390051, *4 (E.D.Pa.1995); Berry v. Norfolk Southern Corp., 1995 WL 465819, *2 (W.D.Va.1995); Gar cia-Paz v. Swift Textiles, Inc., 873 F.Supp. 547, 555 (D.Kan.1995). . The Yanez court expressly noted this question, but did not resolve it: \"Because Yanez' behavior was not 'fast and loose' we need not reach the issue of whether a good faith settlement constitutes 'prior success' required under the 'majority position.’ \" Id. at 327. . We acknowledge the contrary rule applied by the Sixth Circuit. See, e.g., Edwards, 690 F.2d at 599 (\"If the initial proceeding results in settlement, the position cannot be viewed as having been successfully asserted”)." } ]

[ { "docid": "3915620", "title": "", "text": "case occurred. . Moreover, of course, in Booker and Soldal we were concerned only with the requisite state action to establish subject matter jurisdiction. Neither case supports the theories of liability advanced by the Cofields — i.e., that an officer’s presence or aid at a repossession effects a Fourth Amendment \"seizure” by the state or that his presence or aid transforms that repossession into a \"levying” of property. GOODWIN, Senior Circuit Judge, dissenting: When reviewing a summary judgment, we must resolve all reasonable inferences of fact in favor of the nonmoving party. Goddard v. Urrea, 847 F.2d 765, 767 (11th Cir.1988). Because I believe a question of material fact exists, (whether Hancock was there merely to “keep the peace”); and because the law was clearly established that a sheriff without a court order could not lawfully participate in the seizure of private property, I respectfully dissent. The majority concludes that Hancock could not have assisted with the repossession because the Blazer was already exiting the Cofields’ property at the time the Cofields reached their front door. See majority opinion at 471. This conclusion does not account for the assistance Hancock had already provided through his agreement to accompany the Belyeu Chevrolet employees to the Co-field house. Without the security provided by Hancock’s presence, the Belyeu employees may not have been emboldened to attempt the repossession. Hancock claims that his assistance was solely for the purpose of “keeping the peace,” but that claim is contradicted by the testimony of Evans, who solicited Hancock’s aid. Evans testified that he never told Hancock he was fearful of the Cofields, nor did he indicate that he wanted Hancock’s presence for security purposes. Moreover, even if Hancock had not yet assisted the repossession when the Cofields opened their door, the Cofields testified that Roy Cofield attempted to go after the Blazer as it was being driven off. When he did so, Hancock informed Roy that if he interfered with the repossession he would be arrested. A reasonable fact finder could conclude from this evidence that Hancock did not just “keep the peace,” but in fact" } ]

[ { "docid": "12393133", "title": "", "text": "at 937, 102 S.Ct. 2744). “In other words, it must be fair to characterize [Brown] as [a] state actor[].” Id. While there is no dispute that Brown is a private entity, a private party can—in “rare circumstances”—be deemed a state actor for § 1983 purposes if one of three tests is met. Id. at 4-5. The first test is the state compulsion test. Under this test, “a private party is fairly characterized as a state actor when the state ‘has exercised coercive power or has provided such significant encouragement, either overt or covert, that the [challenged conduct] must in law be deemed to be that of the State.’ ” Id. at 5 (alteration in original) (quoting Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982)). The second test—the nexus/joint action test—deems a private party a state actor “where an examination of the totality of the circumstances reveals that the state has ‘so far insinuated itself into a position of interdependence with the [private party] that it was a joint participant in [the challenged activity].’ ” Id. (alterations in original) (quoting Bass v. Parkwood Hosp., 180 F.3d 234, 242 (5th Cir.1999)), Finally, under the public function test, “a private party is viewed as a state actor if the plaintiff establishes that, in engaging in the challenged conduct, the private party performed a public function that has been ‘traditionally the exclusive prerogative of the State.’ ” Id. (quoting Blum, 457 U.S. at 1005, 102 S.Ct. 2777). Though Klunder never references it by name, his arguments implicate the public function test. Focusing almost entirely on Brown’s charter, Klunder argues that Brown is a body politic which was delegated governmental power and authority by England, and thus qualifies as a state actor. Klunder is correct that Brown’s charter defines it as a “body corporate and politic,” but he misunderstands the term’s import. Black’s Law currently defines a body politic as “[a] group of people regarded in a political (rather than private) sense and organized under a common governmental authority.” Black’s Law Dictionary 198 (9th ed.2009). However, when Brown’s charter" }, { "docid": "6902432", "title": "", "text": "234 F.3d 614, 520 (11th Cir.2000). IV.DISCUSSION Because of the Hogues’ status as private individuals contracting with a State agency, DFACS, we must determine whether, given the allegations and facts of this case, the Hogues could be liable under § 1983 before we consider the issue of qualified immunity. That is, we must first determine whether the Hogues are State actors because § 1983 only provides for claims to redress State action. See 42 U.S.C. § 1983; see also Patrick v. Floyd Medical Center, 201 F.3d 1313, 1315 (11th Cir.2000) (“To obtain relief under § 1983, [a party] must show that he [or she] was deprived of a federal right by a person acting under color of state law.”). Should we conclude that there is no State action, we must dismiss the Rayburn’s claim without reaching the qualified immunity issue. See id.; see also Burrell v. Board of Trustees of Ga. Military College, 970 F.2d 785, 790 n. 13 (11th Cir.1992) (“Since § 1983 requires action ‘under color of state law,’ only government officials acting under color of state law may assert qualified immunity.”). “Only in rare circumstances can a private party be viewed as a ‘[S]tate actor’ for section 1983 purposes.” Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir.1992). Indeed, to hold that private parties, such as the Hogues, are State actors, this court must conclude that one of the following three conditions is met: (1) the State has coerced or at least significantly encouraged the action alleged to violate the Constitution (“State compulsion test”); (2) the private parties performed a public function that was traditionally the exclusive prerogative of the State (“public function test”); or (3) “the State had so far insinuated itself into a position of interdependence with the [private parties] that it was a joint participant in the enterpriseG” (“nexus/joint action test”). NBC, Inc. v. Communications Workers of America, 860 F.2d 1022, 1026-27 (11th Cir.1988). The district court found that the first two conditions were not met because “the [S]tate exercised no encouragement of the Hogues’ actions, nor is foster care traditionally an exclusive [S]tate" }, { "docid": "6902433", "title": "", "text": "under color of state law may assert qualified immunity.”). “Only in rare circumstances can a private party be viewed as a ‘[S]tate actor’ for section 1983 purposes.” Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir.1992). Indeed, to hold that private parties, such as the Hogues, are State actors, this court must conclude that one of the following three conditions is met: (1) the State has coerced or at least significantly encouraged the action alleged to violate the Constitution (“State compulsion test”); (2) the private parties performed a public function that was traditionally the exclusive prerogative of the State (“public function test”); or (3) “the State had so far insinuated itself into a position of interdependence with the [private parties] that it was a joint participant in the enterpriseG” (“nexus/joint action test”). NBC, Inc. v. Communications Workers of America, 860 F.2d 1022, 1026-27 (11th Cir.1988). The district court found that the first two conditions were not met because “the [S]tate exercised no encouragement of the Hogues’ actions, nor is foster care traditionally an exclusive [S]tate prerogative.” We agree. However, based on the reasoning set forth below, the district court reached a different conclusion with respect to the third condition: Under the Georgia Tort Claims Act, the [S]tate waives sovereign immunity for the torts of employees and officers committed within the scope of official duties or employment. O.C.G.A. § 50-21-23(a). In addition, the Act provides total immunity for employees who commit torts within the scope of employment. O.C.G.A. § 50-21-25(a). By including foster parents in the definition of [S]tate employees, the Act expressly grants foster parents this protection. Id. Likewise, the State expressly waives sovereign immunity and consents to suit for the torts of foster parents. The State’s decision to waive sovereign immunity and consent to suit for the torts of foster parents, combined with the decision to provide total immunity to foster parents for torts committed during their employment as foster parents, creates a nexus between the State and the regulated activity of foster parents that is suffi- dent to make the Hogues [S]tate actors .... Rayburn ex rel. Rayburn" }, { "docid": "6711994", "title": "", "text": "determined that a private actor’s actions may be attributable to the state if one of the three following tests is met: (1) the public function test; (2) the state compulsion test; or (3) the symbiotic relationship or nexus test. (R & R, p. 19). As further discussed in the R & R, the ARRT’s investigation into Ms. Vistein’s altered membership card does not pass the public function test for de facto state action by a private actor. (R & R, pp. 19-20). Such functions are those “traditionally exclusively reserved to the state, such as holding elections ... or eminent domain.” Wolotsky, 960 F.2d at 1335. The ARRT is a private, national credentialing agency for radiological technicians and thereby does not perform functions “traditionally exclusively reserved to the state.” See Talwar v. Catholic Healthcare Partners, et al., No. 05-7437, 2006 WL 3526792, 2006 U.S. Dist. LEXIS 88280 (N.D.Ohio 2006) (a private entity’s investigation into an individual’s medical practice does not count as a traditionally exclusive state function); McKeesport Hosp. v. Accreditation Council for Graduate Med. Educ., 24 F.3d 519, 525 (3rd Cir.1994) (evaluation and accreditation of medical education is not a traditionally exclusive state function). Neither do the ARRT’s actions meet the state compulsion test. Here, the state must “exercise such coercive power or provide such significant encouragement [to the private actor] that in law the choice of the private actor is deemed to be that of the state.” Wolotsky 960 F.2d at 1335. Nothing in the record indicates that the state either coerced or significantly encouraged the ARRT’s investigation of Ms. Vistein. Ms Vistein’s claims also fail the nexus test. To pass this test, the United States Supreme Court has held [t]he State [must have] so far insinuated itself into a position of interdependence with [the private actor] that it must be recognized as a joint participant in the challenged activity, which, on that account, cannot be considered to have been so “purely private” as to fall without the scope of the Fourteenth Amendment. Burton v. Wilmington Parking Authority, 365 U.S. 715, 725, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961)." }, { "docid": "22262927", "title": "", "text": "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 1004, 102 S.Ct. at 2786 (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974)). It continued: “The purpose of this 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 importance of this assurance is evident when, as in this case, the complaining party seeks to hold the State liable for the actions of private parties.” Id. The Court further held that “although the factual setting of each case will be significant, our precedents indicate that 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. Mere approval of or acquiescence in the initiatives of a private party is not sufficient to justify holding the State responsible for those initiatives under the terms of the Fourteenth Amendment.” Id. at 1004-05, 102 S.Ct. at 2786 (citations omitted) (emphasis added). Consistent with the standard outlined in Blum, under the nexus/joint action test, we ask “whether ‘the [s]tate has so far insinuated itself into a position of interdependence with the [private parties] that it was a joint participant in the enterprise.’ ‘To charge a private party with [sjtate action under this standard, the governmental body and private party must be intertwined in a symbiotic relationship.’ The Supreme Court has indicated that the symbiotic relationship must involve the ‘specific conduct of which the plaintiff complains.’” Rayburn ex rel. Rayburn v. Hogue, 241 F.3d 1341, 1348 (11th Cir.2001) (quoting NBC, 860 F.2d at 1026-27 and Sullivan, 526 U.S. at 51, 119 S.Ct. at 985) (other citations and internal punctuation omitted). In this case, PSTA established explicit rules for determining the acceptability of an advertisement and, under its" }, { "docid": "5601297", "title": "", "text": "delegation of police authority. See Def. Reply at 57. This oversight, however, does not amount to coercive power or significant encouragement. As discussed earlier, the City had no rule or regulation that required UM to suspend or terminate the plaintiffs from their employment, and the City did not participate in the investigation or decision-making process. The defendants’ agreement even stated that UM police officers would “be disciplined by the University”. (Def.Ex. 22). The outcome of the compulsion test would be different if there was evidence that City supervisors were pressuring UM to terminate the plaintiffs, had provided oversight to the employment decision, or otherwise participated in the termination, but the record is devoid of such proof. As in Rendell, the most intrusive personnel policy that the City promulgated was its right to approve persons hired as UM officers, but this fact does not compel a finding that the plaintiffs have satisfied the compulsion test. As such, the plaintiffs’ state action argument fails under the state compulsion test. Nexus/Joint Action Test: The third test devised by the Supreme Court for establishing state action is the nexus/joint action test, which limits state action to instances in which “the State has so far insinuated itself into a position of interdependence with the [private party] that it must be recognized as a joint participant in the challenged activity”. Patrick v. Floyd Med. Ctr., 201 F.3d 1313, 1315 (11th Cir.2000); see also Nat’l Broad. Co., 860 F.2d at 1026-27. “To sustain a § 1983 claim under the nexus/joint action test, a symbiotic relationship between the public and private entities must involve the alleged constitutional violation.” Patrick, 201 F.3d at 1316. In determining whether a public and private entity are so intertwined as to render them subject to § 1983 liability, courts evaluate such factors as whether: (1) the public and private entities are separate and distinct under the law; (2) the private entity had discretion to hire and fire employees; (3) the private entity was responsible for maintenance and repair' of its own facilities; (4) the private entity had the right to make its own" }, { "docid": "22261735", "title": "", "text": "(recognizing public function test, state compulsion test, nexus test, and joint action tests). Under the public func tion test, a “private entity may be deemed a state actor when that entity performs a function which is traditionally the exclusive province of the state.” See Wong v. Stripling, 881 F.2d 200, 202 (5th Cir.1989). However, “[w]hile many functions have been traditionally performed by governments, very few have been ‘exclusively reserved to the State.’ ” Flagg Bros, 98 S.Ct. at 1734 (finding that “resolution of private disputes,” was not a traditionally exclusive function of government). The state compulsion (or coercion) test holds that “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.” Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 2786, 73 L.Ed.2d 534 (1982) (citations omitted). The state’s mere acquiescence in private conduct, even where authorized by statute, will not transform that conduct into state action. See Flagg Bros., 98 S.Ct. at 1737-38 (holding warehouseman’s sale of goods pursuant to statutory self-help measures was not state action). Under the nexus or joint action test, state action may be found where the government has “so far insinuated itself into a position of interdependence with the [private actor] that it was a joint participant in the enterprise.” Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 457, 42 L.Ed.2d 477 (1974) (citation omitted). For example, in Lugar, the Court found state action based on a statute unconstitutionally authorizing the sheriff to attach a debtor’s property on the basis of an ex-parte writ. See Lugar, 102 S.Ct. at 2744. “[A] private party’s joint participation with state officials in the seizure of disputed property is sufficient to characterize that party as a ‘state actor’ for purposes of the Fourteenth Amendment.” Id. at 2756. Under any formula, however, the inquiry into whether private conduct is fairly attributable to the state must be determined based on the circumstances of each case." }, { "docid": "9995443", "title": "", "text": "purpose of the “nexus test” is to ensure that constitutional standards are invoked only when a court can determine that the state is responsible for the specific conduct. See Blum, 457 U.S. at 1004, 102 S.Ct. at 2785. The Supreme Court has consistently held that extensive regulation by the state does not create a sufficient relationship between the state and a private party to cause the private party to become a state actor. See Rendell-Baker v. Kohn, 457 U.S. 830, 842, 102 S.Ct. 2764, 2771, 73 L.Ed.2d 418 (1982); see also Blum, 457 U.S. at 1011, 102 S.Ct. at 2789. Actions of a private party satisfy the nexus test only when 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.” Harvey, 949 F.2d at 1131 (quoting National Broadcasting Co. v. Communication Workers df America, AFL-GIO, 860 F.2d 1022, 1026 (11th Cir.1988)). Taking all of plaintiffs well-pleaded facts as true, the court cannot conclude, by application of the nexus test, that any of the defendants was functioning as a state actor. There has been no pleading of facts showing the requisite insinuation. The only pleaded relationship between defendants and the state was the existence of the voluntary commitment statute. The mere existence of a state statute does not automatically result in state action. See Goss v. Memorial Hosp. Sys., 789 F.2d 353, 356 (5th Cir.1986). B. Public Function Test: The court next considers whether the alleged state actor defendants have performed functions or received powers that are traditionally the exclusive prerogative of the state. See Jackson, 419 U.S. at 353, 95 S.Ct. at 454; Harvey, 949 F.2d at 1131. New activities are exclusively reserved to the states. See Flagg Bros., 436 U.S. at 158-59, 98 S.Ct. at 1734-35. Examples are the running of elections and the governing of company towns. Id.; see also White v. Scrivner Corp., 594 F.2d 140, 142 (5th Cir.1979). Courts generally have been unwilling to place within this narrow exception to the state action rule the commitment of individuals to private" }, { "docid": "15682855", "title": "", "text": "rights abuses which violate international customary law. Having so concluded, the court now considers four tests used to determine whether a private actor has engaged in state action for purposes of § 1983. The Supreme Court has recognized several circumstances in which a private actor can be held to have acted under color of law within the meaning of § 1983. In Gallagher, the Tenth Circuit Court of Appeal summarized the relevant tests: The Court has taken a flexible approach to the state action doctrine, applying a variety of tests to the facts of each case. [1] In some instances, the Court has considered 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. [2] The Court has also inquired whether the state has so far insinuated itself into a position of interdependence with the private party, that there is a symbiotic relationship between them. [3] In addition the Court has held that if a private party is a willful participant in joint activity with the State or its agents then state action is present. [4] Finally the Court has ruled that a private entity, that exercises powers traditionally exclusively reserved to the State is engaged in state action. 49 F.3d at 1447 (quotations omitted). The court refers to these four tests as (1) the nexus test, (2) the symbiotic relationship test, (3) the joint action test, and (4) the public function test. Gallagher concerned the interaction between public officers and private security personnel. In Gallagher a group of individuals sued the University of Utah, a concert promoter and a private security corporation under section 1983 for violation of their Fourth Amendment rights. The plaintiffs were subjected to pat-down searches by the private security guards before entering the concert facility. University security officers observed but did not participate in the pat-down searches. After applying the four state action tests mentioned above, the Tenth Circuit Court of Appeal held that (1) the observation of the pat-down" }, { "docid": "12502214", "title": "", "text": "a plaintiff must “demonstrate that the party charged with the [constitutional] deprivation must be a person who may fairly be said to be a state actor. This may be because [she] is a state official, because [she] has acted together with or has obtained significant aid from state officials, or because [her conduct] is otherwise chargeable to the State.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2753-54, 73 L.Ed.2d 482 (1982). When the defendant is an actual official of the state, such as a police officer or a government official, the inquiry is straightforward. In this case, however, the plaintiffs allege that the actions of Nancy Al-dridge, a licensed therapist in private practice who has no official ties to Cobb County, its police department or its Department of Social Services, are “fairly attributable to the State.” As we said most recently in Harvey v. Harvey, “[o]nly in rare circumstances can a private party be viewed as a ‘state actor’ for Section 1983 purposes.” 949 F.2d 1127, 1130 (11th Cir.1992). There are three primary tests for determining whether a private party can be considered a state actor: the public function test, the state compulsion test, and the nexus/joint action test. NBC v. Communications Workers of America, AFL-CIO, 860 F.2d 1022, 1026 (11th Cir.1988). The public function test “covers only private actors performing functions ‘traditionally the exclusive prerogative of the State,’ ” id., quoting Jackson v. Metropolitan Edison Company, 419 U.S. 345, 353, 95 S.Ct. 449, 454-55, 42 L.Ed.2d 477 (1974), and is inapplicable to this case. The state compulsion test describes instances “in which the government has coerced or at least significantly encouraged the action alleged to violate the Constitution.” NBC, 860 F.2d at 1026. In this case, however, the plaintiffs allege that Aldridge was a willing, if not leading, party in the events that led up to the alleged constitutional deprivation. Thus, the state compulsion test is also inapposite here. The plaintiffs make vague allegations of a conspiracy between Aldridge on one hand, and Davis and Moody — who are obviously state actors for this" }, { "docid": "3994613", "title": "", "text": "not forbid it permits. As for the public defendants in this case — the deputy sheriffs (county police)—the mere presence of police at the scene of a private act (here, the eviction of the Soldáis by Terrace’s employees) in which they do not participate does not transform the private act into a public one. Gramenos v. Jewel Cos., 797 F.2d 432, 435 (7th Cir.1986). But there was more here. The eviction was unlawful, and Soldal had a common law right to resist it forcibly, although his right was limited to using mild force. The deputy sheriffs prevented Soldal from exercising his right, and while this by itself may not have made them actual participants in the eviction, the condition of the record (the case was dismissed on summary judgment) requires us, as the panel opinion explained, to assume that there was a conspiracy between the private and the public defendants — that the deputy sheriffs joined Terrace Properties in a scheme to get rid of a pesky tenant, a troublemaker. 923 F.2d at 1247-48. If so, it is as if the deputy sheriffs themselves seized the trailer, disconnected it from the utilities, and towed it away. Equivalently it is as if they had deputized the private defendants to assist them. Thus, on the state of the record, we must regard all of the defendants as having acted under color of state law. This frames the question that we granted rehearing en banc to decide: If police officers disconnect and tow away a trailer home, can their action be challenged under the Fourth Amendment as an unreasonable seizure? The question is of surprising novelty, and its implications for other forms of eviction and even perhaps for the repossession of automobiles and other personal property make it of potentially far-reaching practical significance. The history of the question in the courts can be recounted briefly. The question was left open in Fuentes v. Shevin, 407 U.S. 67, 96 n. 32, 92 S.Ct. 1983, 2002 n. 32, 32 L.Ed.2d 556 (1972). A glancing reference in Tavarez v. O’Malley, 826 F.2d 671, 678 (7th Cir.1987)," }, { "docid": "22262924", "title": "", "text": "taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. 42 U.S.C. § 1983. As the Supreme Court has explained, “[t]o state a claim for relief in an action brought under § 1983, [plaintiffs] must establish that they were deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law. Like the state-action requirement of the Fourteenth Amendment, the under-color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful.” American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S.Ct. 977, 985, 143 L.Ed.2d 130 (1999) (internal punctuation and citations omitted). Section 1983’s state action requirement applies regardless of the nature of the substantive deprivation being alleged. Thus, Focus may advance neither its facial nor its as-applied challenge if the rejection of its advertisements is not attributable to PSTA. We have employed three distinct tests in determining whether the actions of a private entity are properly attributed to the state. In Willis v. Univ. Health Servs., Inc., we summarized the distinctions between these tests as follows: Previously, this circuit set forth the three primary tests the Supreme Court has used to determine whether state action exists: (1) the public function test; (2) the state compulsion test; and (3) the nexus/joint action test. The public function test limits state action to instances where private actors are performing functions “traditionally the exclusive prerogative of the state.” The state compulsion test limits state action to instances where the government “has coerced or at least significantly encouraged the action alleged to violate the Constitution.” The nexus/joint action test applies where “the state has so far insinuated itself into a position of interdependence with the [private party] that it was a joint participant in the enterprise.” We must determine on a case-by-case basis whether sufficient state action is present from a non-state actor (defendant) to sustain a section 1983 claim. 993 F.2d 837, 840 (11th Cir.1993) (quoting" }, { "docid": "5885807", "title": "", "text": "actors. Harvey, 949 F.2d at 1130. We have employed the following three tests to determine whether a private party fairly can be characterized as a state actor: the state compulsion test, the nexus/joint action test, and the public function test. Rockwell, 26 F.3d at 257; see Perkins v. Londonderry Basketball Club, 196 F.3d 13, 18-21 (1st Cir.1999). The district court considered each of these tests on the assumption that, were any of them met, the state action requirement would be satisfied. The parties accepted this approach, and therefore, we follow it as well. Under the state compulsion test, a private party is fairly characterized as a state actor when the state “has exercised coercive power or has provided such significant encouragement, either overt or covert, that the [challenged conduct] must in law be deemed to be that of the State.” Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982). The nexus/joint action test provides that a private party can be held to be a state actor where an examination of the totality of the circumstances reveals that the state has “so far insinuated itself into a position of interdependence with the [private party] that it was a joint participant in [the challenged activity].” Bass v. Parkwood Hosp., 180 F.3d 234, 242 (5th Cir.1999) (internal quotation marks omitted) (first alteration in original); see Perkins, 196 F.3d at 21. And, in accordance with the public function test, a private party is viewed as a state actor if the plaintiff establishes that, in engaging in the challenged conduct, the private party performed a public function that has been “traditionally the exclusive prerogative of the State.” Blum, 457 U.S. at 1005, 102 S.Ct. 2777 (internal quotation marks omitted). We now address whether Estades’ complaint alleged facts sufficient to support a finding that Appellees are fairly regarded as state actors under any of the above tests. We recognize that “[u]nder any formula ..., the [determination as to] whether private conduct is fairly attributable to the state must be [made] based on the circumstances of each case.” Bass, 180 F.3d at" }, { "docid": "1796333", "title": "", "text": "previously outlined the various tests that the Supreme Court employs to determine whether a private party has acted under color of state law. Bass v. Parkwood, 180 F.3d 234, 241-43 (5th Cir.1999) (applying the tests to hold that a private mental institution did not act under color of state law by committing the plaintiff). According to the public function test, a private entity acts under color of state law when the entity performs a function which is “exclusively reserved to the state.” Flagg Bros., 436 U.S. at 157-58, 98 S.Ct. 1729. (internal quotations omitted); Wong v. Stripling, 881 F.2d 200, 202 (5th Cir.1989). The state compulsion (or coercion) test holds the state responsible “for a private decision only when [the state] 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.” Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (internal quotations omitted). Similarly, the nexus or state action test finds state action where the state has “so far insinuated itself into a position of interdependence with the [private actor] that it was a joint participant in the enterprise.” Jackson v. Metropolitan Edison Co., 419 U.S. 345, 357-58, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974); see also Lu-gar, 457 U.S. at 941-42, 102 S.Ct. 2744 (1982). Richard argues that Appellees acted under color of state law based on the state action test. He relies on Lugar, in which the Supreme Court found “joint participation” between a private actor and the state. 457 U.S. at 942, 102 S.Ct. 2744. In Lugar, a creditor allegedly failed to meet the statutory requirements for enforcing attachment of the debtor’s property, yet state officials seized the property without allowing the debtor to defend the action. Id. at 925, 102 S.Ct. 2744. The Court found joint participation because the state officials committed an ex parte action at the request of a private party; Id. at 942, 102 S.Ct. 2744. In reaching this conclusion, the Court stated that to find state action under §" }, { "docid": "5885808", "title": "", "text": "the totality of the circumstances reveals that the state has “so far insinuated itself into a position of interdependence with the [private party] that it was a joint participant in [the challenged activity].” Bass v. Parkwood Hosp., 180 F.3d 234, 242 (5th Cir.1999) (internal quotation marks omitted) (first alteration in original); see Perkins, 196 F.3d at 21. And, in accordance with the public function test, a private party is viewed as a state actor if the plaintiff establishes that, in engaging in the challenged conduct, the private party performed a public function that has been “traditionally the exclusive prerogative of the State.” Blum, 457 U.S. at 1005, 102 S.Ct. 2777 (internal quotation marks omitted). We now address whether Estades’ complaint alleged facts sufficient to support a finding that Appellees are fairly regarded as state actors under any of the above tests. We recognize that “[u]nder any formula ..., the [determination as to] whether private conduct is fairly attributable to the state must be [made] based on the circumstances of each case.” Bass, 180 F.3d at 242. A. State Compulsion Test Here, there can be no finding of state action under the state compulsion test, as Estades failed to allege facts that would support a finding that the state coerced or encouraged Appellees to pursue or otherwise participate in her involuntary commitment. To be sure, Estades alleged that Appellees acted in accordance with the procedures outlined in the state statutory scheme established to govern involuntary commitment. See 24 P.R. Laws Ann. § 6001 et seq. However, that scheme does not compel or encourage involuntary commitment. Rather, it merely provides a mechanism through which private parties can, in their discretion, pursue such commitment. Thus, that allegation does not support a finding of state action. See Barrios-Velazquez v. Asociacion de Empleados del Estado Libre Asociado de Puerto Rico, 84 F.3d 487, 493 (1st Cir.1996); see also Harvey, 949 F.2d at 1131 (“[Appellant] cannot seriously allege that the relevant provisions of the [statutory scheme] were enacted because the state wants -to encourage commitments .... ” (internal quotation marks omitted)). Estades also alleged that a" }, { "docid": "22262925", "title": "", "text": "whether the actions of a private entity are properly attributed to the state. In Willis v. Univ. Health Servs., Inc., we summarized the distinctions between these tests as follows: Previously, this circuit set forth the three primary tests the Supreme Court has used to determine whether state action exists: (1) the public function test; (2) the state compulsion test; and (3) the nexus/joint action test. The public function test limits state action to instances where private actors are performing functions “traditionally the exclusive prerogative of the state.” The state compulsion test limits state action to instances where the government “has coerced or at least significantly encouraged the action alleged to violate the Constitution.” The nexus/joint action test applies where “the state has so far insinuated itself into a position of interdependence with the [private party] that it was a joint participant in the enterprise.” We must determine on a case-by-case basis whether sufficient state action is present from a non-state actor (defendant) to sustain a section 1983 claim. 993 F.2d 837, 840 (11th Cir.1993) (quoting National Broad. Co., Inc. (“NBC”) v. Communications Workers of Am., AFL-CIO, 860 F.2d 1022, 1026-27 (11th Cir.1988)) (other citations omitted). In Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982), a case featuring facts similar to those now at bar, the Supreme Court applied a standard analogous to our nexus/joint action test. In Blum, the plaintiffs brought a § 1983 action challenging decisions by several private nursing homes to transfer or discharge Medicaid patients. However, the defendants in the case were not the nursing homes or any agent thereof, but instead were “state officials responsible for administering the Medicaid program [and regulating nursing homes] in New York.” Id. at 1003, 102 S.Ct. at 2785. In other words, the Court summarized, the lawsuit sought “to hold state officials liable for the actions of private parties.... ” Id. In outlining a mode for determining the propriety of holding the state liable for private conduct, the Court said: “the complaining party must ... show that ‘there is a sufficiently close nexus between the State" }, { "docid": "12502215", "title": "", "text": "are three primary tests for determining whether a private party can be considered a state actor: the public function test, the state compulsion test, and the nexus/joint action test. NBC v. Communications Workers of America, AFL-CIO, 860 F.2d 1022, 1026 (11th Cir.1988). The public function test “covers only private actors performing functions ‘traditionally the exclusive prerogative of the State,’ ” id., quoting Jackson v. Metropolitan Edison Company, 419 U.S. 345, 353, 95 S.Ct. 449, 454-55, 42 L.Ed.2d 477 (1974), and is inapplicable to this case. The state compulsion test describes instances “in which the government has coerced or at least significantly encouraged the action alleged to violate the Constitution.” NBC, 860 F.2d at 1026. In this case, however, the plaintiffs allege that Aldridge was a willing, if not leading, party in the events that led up to the alleged constitutional deprivation. Thus, the state compulsion test is also inapposite here. The plaintiffs make vague allegations of a conspiracy between Aldridge on one hand, and Davis and Moody — who are obviously state actors for this purpose — on the other, thereby suggesting the type of symbiotic relationship between the government and a private party addressed by the nexus/joint action test. Id., 419 U.S. at 357, 95 S.Ct. at 456-57. The question here is whether “the State has so far insinuated itself into a position of interdependence with the [private party] that it was a joint participant in the enterprise.” Jackson, 419 U.S. at 357-58, 95 S.Ct. at 456-57. The facts presented by the plaintiffs, taken as true, do not support any allegation that Nancy Aldridge was anything except a private therapist hired by Victoria Lowe to treat the Lowe children. Aldridge previously had worked with abused children and testified in custody cases and cases involving child sexual abuse, but had no formal arrangement with the Cobb County Prosecutor’s Office or any other governmental agency. Aldridge made a report of her suspicions of child abuse to the Division of Family and Child Services (DFACS), as required by law, but she was not required to contact the police department, and did not" }, { "docid": "23119081", "title": "", "text": "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 under contract with the state and receiving 90% state funding); Greco v. Orange Memorial Hosp. Corp., 513 F.2d 873 (5th Cir.1975) (no state action where private hospital operated on land leased from county). So, we are unable to convert Charter into a state actor under the nexus or joint action test. Appellant finally argues that the commitment process is a traditional public function, implying that state law guiding private participation in this function effectively transforms the private participant into a state actor. But this argument does not take the public function analysis far enough. That the private party has powers co-extensive with the state is irrelevant; the public function test shows state action only when private actors are given powers (or perform functions) that are “traditionally the exclusive prerogative of the State.” Id. (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 353, 95 S.Ct. 449, 454-55, 42 L.Ed.2d 477 (1974)) (emphasis added). New activities are “exclusively reserved to the states.” Flagg Brothers, 436 U.S. at 158-59, 98 S.Ct. at 1734; see also White v." }, { "docid": "9447414", "title": "", "text": "color of state law. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978); Ellison v. Garbarino, 48 F.3d 192, 194 (6th Cir.1995). When a defendant is a private entity, this circuit recognizes three tests for determining whether its conduct is fairly attributable to the state: the public function test, the state compulsion test, and the nexus test. Wolotsky v. Huhn, 960 F.2d 1331 (6th Cir.1992). The public function test “requires that the private entity exercise powers which are traditionally exclusively reserved to the state.” Id. at 1335. The state compulsion test requires proof that the state significantly encouraged or somehow coerced the private party, either overtly or covertly, to take a particular action so that the choice is really that of the state. Id. Finally, the nexus test requires a sufficiently close relationship between the state and the private actor so that the action taken may be attributed to the state. Id. Application of these tests to the conduct of a private entity, however, is relevant only in cases in which there are no allegations of cooperation or concerted action between state and private actors. Cooper v. Parrish, 203 F.3d 937, 952 n. 2 (6th Cir.2000) (“If a private party has conspired with state officials to violate constitutional rights, then that party qualifies as a state actor and may be held liable pursuant to § 1983 ... ”); Moore v. City of Paducah, 890 F.2d 831, 834 (6th Cir.1989) (holding that individuals who conspire with state actor to deprive individuals of their federally-protected rights may be found to have acted under color of state law for purposes of § 1983 liability). Private persons may be held liable under § 1983 if they willfully participate in joint action with state agents. Dennis v. Sparks, 449 U.S. 24, 27-28, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980); United States v. Price, 383 U.S. 787, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966) (stating that to act under color of law does not require that the accused be an officer of the State. It is enough that he" }, { "docid": "22262928", "title": "", "text": "approval of or acquiescence in the initiatives of a private party is not sufficient to justify holding the State responsible for those initiatives under the terms of the Fourteenth Amendment.” Id. at 1004-05, 102 S.Ct. at 2786 (citations omitted) (emphasis added). Consistent with the standard outlined in Blum, under the nexus/joint action test, we ask “whether ‘the [s]tate has so far insinuated itself into a position of interdependence with the [private parties] that it was a joint participant in the enterprise.’ ‘To charge a private party with [sjtate action under this standard, the governmental body and private party must be intertwined in a symbiotic relationship.’ The Supreme Court has indicated that the symbiotic relationship must involve the ‘specific conduct of which the plaintiff complains.’” Rayburn ex rel. Rayburn v. Hogue, 241 F.3d 1341, 1348 (11th Cir.2001) (quoting NBC, 860 F.2d at 1026-27 and Sullivan, 526 U.S. at 51, 119 S.Ct. at 985) (other citations and internal punctuation omitted). In this case, PSTA established explicit rules for determining the acceptability of an advertisement and, under its agreement with Eller, retains final decision-making authority over the acceptability of all proposed advertisements. Moreover, Focus has introduced both direct (though contested) evidence that PSTA rejected the Love Won Out advertisements, and uncontested evidence that its advertisements were rejected on bases expressly designated by PSTA as unacceptable. As such, appellant has presented ample objective evidence on which a reasonable factfinder could conclude that PSTA is responsible for the rejection of its advertisements. In a relatively similar context, we rejected a nexus/joint action argument based primarily on the fact that “[t]here [was] no evidence ... that [the state] had anything to do with [the private entity’s] decision to deny [the plaintiffs] application; rather, the Agreement gave sole authority regarding such decisions to [the private entity].” Patrick v. Floyd Med. Ctr., 201 F.3d 1313, 1316 (11th Cir.2000). This case presents the precise inverse of that situation, and accordingly the legal outcome also diverges from the one reached in Patrick. In short, there is palpable evidence that this is not a case where a private actor in a" } ]

[ { "docid": "22984053", "title": "", "text": "Nor are Birnbaum v. Newport Steel Corp., 2 Cir., 1952, 193 F.2d 461, cert, denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356, or Howard v. Furst, 2 Cir., 1956, 238 F.2d 790, cert, denied, 1957, 353 U.S. 937, 77 S.Ct. 814, 1 L.Ed.2d 759, contrary to this proposition. Birnbaum was a derivative suit on behalf of one corporation against a person who controlled that corporation until he sold his shares to another corporation which had not been deceived. The court limited the broad language of Rule 10B-5 to situations in which either the purchaser or the seller of the stock is defrauded, situations not presented by the facts of Birnbaum. The court concluded, 193 F.2d at 464: “When Congress intended to protect the stockholders of a corporation against a breach of fiduciary duty by corporate insiders, it left no doubt as to its meaning. Thus Section 16 (b) of the Act of 1934, 15 U.S.C. § 78p(b), expressly gave the corporate issuer or its stockholders a right of action against corporate insiders using their position to profit in the sale or exchange of corporate securities. The absence of a similar ' provision in Section 10(b) strengthens the conclusion that that section was directed solely at that type of misrepresentation or fraudulent practice usually associated with the sale or purchase of securities rather than at fraudulent mismanagement of corporate affairs, and that Rule X-10B-5 extended protection only to the defrauded purchaser or seller.” Howard v. Furst, supra, held that Section 14(a) of the Securities Exchange Act of 1934, governing proxy solicitations, created no civil remedy enforceable by the corporation whose shareholders were solicited. The court cited Birn-baum in noting, 238 F.2d at 793: “Significantly, where it was intended to create a right of action in favor of the issuer corporation, the statute makes express provision therefor, as in the case of Section 16 (b).” But neither Birnbaum nor Howard presented a situation in which suit was instituted on behalf of a defrauded corporation. It is perfectly obvious that in both cases the fraudulent statements and omissions were directed at" } ]

[ { "docid": "20876497", "title": "", "text": "influence sufficient to prompt the bank to make at least $450,000 in bad loans, allegedly to defendants’ designees. Apparently it is believed the uncollectable loans impaired the bank’s capital and resulted in its collapse. Under section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 783(b), rule 10b-5, 17 C.F.R. § 240.-10b-5, section 17 of the Investment Company Act of 1940, 15 U.S.C. § 80A-17, and section 206(4) of the Investment Advisors Act of 1940, 15 U.S.C. § 80b-6(4), plaintiffs seek damages in the amount of the lost value of their bank stock. Rule 10b-5 requires that actionable fraud be perpetrated “in connection with the purchase or sale of a security. . ” This requirement has been interpreted to mean that a plaintiff usually cannot recover unless he is the purchaser or seller of a security which is the subject of a fraudulent transaction. E.g., Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2d Cir), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952); Mount Clemens Industries, Inc. v. Bell, 464 F.2d 339 (9th Cir. 1972) (collecting eases). Plaintiffs do not meet this requirement since they were not involved as purchasers or sellers in the allegedly fraudulent deposit and loan transactions and award of the finder’s fee. The “purchaser-seller” or “Birnbaum” rule apparently began as an effort to limit rule 10b-5 to claims by (1) purchasers and sellers (2) “directed solely at that type of misrepresentation or fraudulent practice usually associated with the sale or purchase of securities (3) rather than at fraudulent mismanagement of corporate affairs. . . .” Birnbaum v. Newport Steel Corp., supra, 193 F.2d at 464; A. R. Bromberg, Securities Law: Fraud — S.E.C. Rule 10b-5 § 4.7(3) (1971) (hereinafter, “Bromberg, Securities Law”). The first and seemingly obvious limitation of the Birnbaum rule, that plaintiffs must in every case be purchasers or sellers, may have resulted from a restrictive reading of rule 10b-5’s history. Birnbaum v. Newport Steel Corp., supra, 193 F.2d at 463-464; Comment, The Purchaser-Seller Requirement of Rule 10b-5 Reevaluated, 44 U.Colo.L.Rev. 151, 152-53 (1972); Comment, The Birnbaum Doctrine" }, { "docid": "13552876", "title": "", "text": "F.Supp. 1083, 1094 (S.D.N.Y.1969). The Birnbaum rule In Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2d Cir.), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952), this Circuit, after extensive analysis of Section 10b-5’s legislative history concluded that the “section was directed solely at that type of misrepresentation or fraudulent practice usually associated with the sale or purchase of securities rather than at fraudulent mismanagement of corporate affairs, and that Rule X-10B-5 extended protection only to the defrauded purchaser or seller.” Birnbaum thus established the rule that a plaintiff could seek relief under 10(b) only if his injuries arose out of an actual purchase or sale. Since Birnbaum, there has been substantial litigation concerning the continued validity of its holding. While the doctrine has been repeatedly reaffirmed, see e. g., Greenstein v. Paul, 400 F.2d 580 (2d Cir. 1968); O’Neill v. Maytag, 339 F.2d 764 (2d Cir. 1964); Christophides v. Porco, 289 F.Supp. 403 (S.D.N.Y.1968); Chashin v. Mencher, 255 F.Supp. 545 (S.D.N.Y.1965); Keers & Co. v. American Steel & Pump Corp., 234 F.Supp. 201 (S.D.N.Y.1964), its initial area of applicability has been extended. Vine v. Beneficial Finance Co., 374 F.2d 627 (2d Cir.1967); A. T. Brod & Co. v. Perlow, 375 F.2d 393 (2d Cir.1967); Stockwell v. Reynolds & Co., 252 F.Supp. 215 (S.D.N.Y.1965). A lengthy discourse on these numerous cases would add little in light of the extensive examination they have already undergone. See e. g., Cohen, The Development of Rule 10b-5, 23 BUS.LAW 593 (1968). Suffice it to note that while a clear majority of holdings resulted in dismissal of complaints because of a failure to satisfy Birnbaum’s requirements, enough cases made substantial inroads on the doctrine (see, e. g., Vine; supra; Brod, supra), to lead one district court judge to suggest that “it may well be that purchaser-or-seller requirement of Birnbaum will not be followed when the question is next presented to the Court of Appeals.” Entel v. Allen, 270 F.Supp. 60, 70 (S.D.N.Y.1967); Lowenfels, The Demise of the Birnbaum Doctrine: A New Era for Rule 10b-5, 54 Va.L.Rev. 268 (1968). However, in" }, { "docid": "20962746", "title": "", "text": "that said proxy statement was false and misleading in that it omitted certain material facts about the role of the defendants in the acquisition and that such omissions constituted violations of Section 14(a) and Rule 14a-9. The various claimed omissions will be fully set forth below. Finally, plaintiff’s complaint adds a cause of action under state law for defendants’ violation of their fiduciary duties to the corporation. Plaintiff invokes the doctrine of pendent jurisdiction in order to sustain the Court’s ju risdiction to determine this cause of action. Section 10(b) of the Securities Exchange Act and Rule 10b-5 promulgated thereunder attempt to prohibit the use of certain manipulative or deceptive devices in connection with the purchase or sale of securities. In order to state a cause of action ,under these provisions, certain essential elements must be set forth in plaintiff’s complaint. See Barnett v. Anaconda Co., 238 F.Supp. 766, 775 (S.D.N.Y.1965). After careful consideration, I have concluded that certain of these essential elements are missing, and, hence, plaintiff’s cause of action under these provisions must be' dismissed. To begin with, these provisions require the plaintiff to be either a purchaser or a seller' of a security. As stated by the Court in Birnbaum v. Newport Steel Corp., 193 F.2d 461, 464 (2d Cir.), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952): [SJection 10(b) * * * was directed solely at that type of misrepresentation or fraudulent practice usually associated with the sale or purchase of securities rather than at fraudulent mismanagement of corporate affairs, and that Rule X-10B-5 extended protection only to the defrauded purchaser or seller. It is now clear that a corporation as a purchaser or seller of stock may assert a claim under Section 10(b) and Rule 10b-5. New Park Mining Co. v. Cranmer, 225 F.Supp. 261 (S.D.N.Y. 1963); Pettit v. American Stock Exch., 217 F.Supp. 21 (S.D.N.Y.1963). But a third person cannot assert claims based upon purchases or sales to which he was not a party. Birnbaum v. Newport Steel Corp., supra; New Park Mining Co. v. Cranmer, supra. In this case," }, { "docid": "10270055", "title": "", "text": "is (1) that the selling defendants, by trading in Douglas common stock without disclosing the material inside information divulged to them by Merrill Lynch and the individual defendants, have violated § 10(b) and Rule 10b-5 and thus are liable in damages to plaintiffs (and to the members of their proposed class), ánd (2) that defendant Merrill Lynch and the individual defendants, by divulging this material inside information to the selling defendants for the purpose of protecting their investments in Douglas stock, have violated § 10(b) and Rule 10b-5 and thus are liable in damages to plaintiffs (and to the members of their proposed class). There is considerable disagreement among both the courts and the commentators as to what the requisite elements of a 10b-5 cause of action are. Those elements which have most often been determined as necessary are: misrepresentation or nondisclosure, materiality, scienter, privity, reliance and causation. 2 A. Bromberg, Securities Law: Fraud, SEC Rule 10b-5 § 8.1 (1971). Standing to Sue Before proceeding, however, to examine the various elements in detail, plaintiffs must first establish their standing to sue under the “purchaser-seller” doctrine first enunciated in this Circuit in Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2d Cir.), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952). There, plaintiff, a minority shareholder of defendant Newport Steel Corp.,' claimed that he was defrauded by various misrepresentations made by defendant regarding a merger between Newport and the Wilport Company. Suit was brought under § 10(b) and Rule 10b-5 even though plaintiff had not purchased or sold any Newport stock. It was plaintiff’s contention that Rule 10b-5 should be construed to include actions for breach of fiduciary duty by corporate insiders. The court disagreed, holding: “[S]ection [10b] was directed solely at that type of misrepresentation or fraudulent practice usually associated with the sale or purchase of securities rather than at fraudulent mismanagement of corporate affairs, and that Rule X-10B-5 extended protection only to the defrauded purchaser or seller.” 193 F.2d at 464. Although the “Birnbaum rule” has been questioned by the commentators, and modified by the courts," }, { "docid": "10657351", "title": "", "text": "have not alleged a cause of action against defendants who are entitled to judgment as a matter of law. Defendants also maintain that § 13 (a) of the Exchange Act does not provide a private right of action and therefore no plaintiff has a cause of action under this section. Finally, in their supplemental motions, defendants contend that plaintiffs have failed to state a cause of action under § 14(a) of the Exchange Act. SUMMARY JUDGMENT MOTIONS 1. Purchaser-Seller Requirement of § 10(b) Section 10(b) and Rule 10b-5, 17 C.F.R. § 240-10b-5, make unlawful the use of manipulative and deceptive devices “in connection with the purchase or sale of any security.” In Birnbaum v. Newport Steel Corp., 193 F.2d 461, 464 (C.A. 2, 1952), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952), the Second Circuit held that § 10(b) “was directed solely at that type of misrepresentation or fraudulent practice usually associated with the sale or purchase of securities rather than at fraudulent mismanagement of corporate affairs” and that Rule 10b-5 “extended protection only to the defrauded purchaser or seller.” The developing case law on § 10(b) has not restricted the type of fraud prohibited to “practices usually associated with the sale or purchase of securities” but has expanded the Birnbaum definition to include “all fraudulent schemes in connection with the purchase or sale of securities, whether the artifices employed involve a garden type variety of fraud, or present a unique form of deception.” A. T. Brod & Co. v. Perlow, 375 F.2d 393, 397 (C.A.2, 1967); Superintendent of Insurance of State of N. Y. v. Bankers Life & Casualty Co., 404 U.S. 6, 92 S.Ct. 165, 30 L.Ed.2d 128 (1971). Similarly the courts have given a liberal construction to what constitutes a purchase or sale for purposes of § 10(b). For example, an exchange of shares in connection with a merger or sale of assets has been held to be “in connection with the purchase or sale,” SEC v. National Securities, Inc., 393 U.S. 453, 89 S.Ct. 564, 21 L.Ed.2d 668 (1969), Dasho v. Susquehanna" }, { "docid": "5948520", "title": "", "text": "that not every breach of a fiduciary obligation imposed by state law is also a violation of section 10(b). Note, 50 Cornell L.Q. 545, 546-47 (1965); Fleischer, “Federal Corporation Law”: An Assessment, 78 Harv.L.Rev. 1146, 1166 (1965). The import of two recent cases in our circuit indicates that the violation of a fiduciary duty does not constitute a cause of action under section 10(b) and Rule 10b-5 absent any affirmative misrepresentation or breach of an affirmative duty to disclose. In Ruckle v. Roto American Corp., 339 F.2d 24 (2d Cir. 1964), the court held that the complaint stated a cause of action under section 10(b) where it was alleged that as part of a scheme to perpetuate control, treasury shares were issued to a director at an arbitrarily low price and that information as to the latest financial statement of the corporation was purposefully withheld from some directors. In O’Neill v. Maytag, 339 F.2d 764 (2d Cir. 1964) the court affirmed the dismissal of the complaint where it alleged that the Board of Directors, as part of a scheme to perpetuate control, approved a stock swap at a ratio unfavorable to the corporation. The crucial distinction between the cases is the absence in Maytag of deceit of any kind, affirmative misrepresentation or failure to disclose, on the decision-making body. The Maytag court stated: “* * * where the duty allegedly breached is only the general duty existing among corporate officers, directors and shareholders, no cause of action is stated under Rule 10b-5 unless there is an allegation of facts amounting to a deception. Our conclusion follows from our view of the purpose of § 10(b): “[T]hat section was directed solely at that type of misrepresentation or fraudulent practice usually associated with the sale or purchase of securities rather than at fraudulent mismanagement of corporate affairs.” Birnbaum v. Newport Steel Corp., 193 F.2d 461, 464 (2d Cir.), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952). O’Neill v. Maytag, supra, at 768. At best, the facts alleged here support a charge of fraudulent mismanagement of corporate affairs. The" }, { "docid": "20839255", "title": "", "text": "the purchase and sale of any security”. In Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2d Cir. 1952) cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952), the Court construed the language “in connection with the purchase or sale of any security” as limiting standing to sue to purchasers or sellers of securities. In Birnbaum, defendant, C. Russell Feldmann, who was president of Newport Steel Corporation and owned forty percent of the common stock (which was sufficient for voting control), broke off merger negotiations with Follansbee Steel Corporation, which merger, on the terms offered by Follansbee, would have been highly profitable to all the stockholders of Newport. Feldmann then sold his stock to Wilport Company at a price of approximately $22 per share, which was twice the then market value of the stock. Wilport Company was formed by a group of manufacturers, each of whom used substantial quantities of steel in their businesses, for the purpose of purchasing Newport and using its steel productive capacity as a “captive” source of supply during a market shortage of steel. This fact accounted for the premium paid to Feldmann for voting control of Newport. The complaint alleges that defendant Feldmann and others made certain mis representations to the stockholders of Newport in letters which stated that the negotiations with Follansbee had been suspended because of the “uncertain international situation” and which later reported the sale of Feldmann’s stock but failed to state the selling price or that Newport was to become a “captive” subsidiary of Wilport. Upon the above facts, the Court held that the plaintiffs, who were shareholders of Newport, had no standing to assert a cause of action under section 10(b) of the Securities Exchange Act because that section is “directed solely at that type of misrepresentation or fraudulent practice usually associated with the sale or purchase of securities rather than at fraudulent mismanagement of corporate affairs, and that Rule X-10B-5 extended protection only to the defrauded purchaser or seller.” 193 F.2d at 464. As no member of the plaintiff's class had either purchased or sold securities," }, { "docid": "10981175", "title": "", "text": "Fass, 754 F.2d 57, 62 (2d Cir. 1985). As revealed in the pleadings, while NFL may have been opportunistic, its actions cannot be considered the proximate cause of plaintiffs’ harm, such proximate cause being attributable to the acts of TOSI’s officers. Allegations of a “but for” causal relationship are simply insufficient. Id. at 63. Accordingly, the Court finds that no duty to disclose existed between plaintiffs Batchelder and defendants NFL and Putnam; thus Count I fails to state a claim of common law fraud against these defendants. The motion to dismiss of Count I is accordingly granted. Count II Defendants NFL and Putman have also moved to dismiss Count II alleging violation of § 10(b) of the Securities and Exchange Act of 1934, 15 U.S.C. § 78j, and Rule 10b-5 of the Securities and Exchange Commission, 17 C.F.R. § 240.10b-5. For the following reasons, the Court finds and rules that the motion to dismiss this count should be granted. In order for plaintiffs to avail themselves of the protections afforded by the above provisions, they must demonstrate that the alleged fraud occurred in connection with the purchase and sale of a security. The “purchaser-seller” standing requirement imposed by the “in connection with the purchase and sale of any security” clause of both the statute and the rule was established initially in Birnbaum v. Newport Steel Corp., 193 F.2d 461, 464 (2d Cir.1952), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952), and reaffirmed over twenty years later by the United States Supreme Court in Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 749, 95 S.Ct. 1917, 1931-32, 44 L.Ed.2d 539 (1975). This standing requirement, known as the Birnbaum rule, was articulated by the Second Circuit as follows: Section 10(b) ... was directed solely at that type of misrepresentation or fraudulent practice usually associated with the sale or purchase of securities rather than at fraudulent mismanagement of corporate affairs, and that Rule X-10B-5 extended protection only to the defrauded purchaser or seller. Birnbaum, supra, 193 F.2d at 464. In the case sub judice, plaintiffs Batchelder apparently" }, { "docid": "5948521", "title": "", "text": "part of a scheme to perpetuate control, approved a stock swap at a ratio unfavorable to the corporation. The crucial distinction between the cases is the absence in Maytag of deceit of any kind, affirmative misrepresentation or failure to disclose, on the decision-making body. The Maytag court stated: “* * * where the duty allegedly breached is only the general duty existing among corporate officers, directors and shareholders, no cause of action is stated under Rule 10b-5 unless there is an allegation of facts amounting to a deception. Our conclusion follows from our view of the purpose of § 10(b): “[T]hat section was directed solely at that type of misrepresentation or fraudulent practice usually associated with the sale or purchase of securities rather than at fraudulent mismanagement of corporate affairs.” Birnbaum v. Newport Steel Corp., 193 F.2d 461, 464 (2d Cir.), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952). O’Neill v. Maytag, supra, at 768. At best, the facts alleged here support a charge of fraudulent mismanagement of corporate affairs. The absence of any deception limits the analogy to traditional common law fraud upon which section 10(b) is based. See Note, supra, 50 Cornell L.Q. at 547; Fleischer, supra, 78 Harv.L.Rev. at 1166. The misappropriation or waste of corporate assets, also present in Maytag, is not the fraud to which section 10(b) was directed. See also Carliner v. Fair Lanes, Inc., 244 F.Supp. 25 (D.Md.1965). Plaintiff, accordingly, can receive no support from the language of the Ruckle court that all the directors can defraud their corporation, when the “fraud” complained of is not “fraud” within the meaning of section 10(b). Other Sections Invoked We find no cause of action alleged under section 9(a) (4) of the Exchange Act. There has been no assertion of misrepresentation by the purchaser to the seller. See Elfenbein v. Yaeger, CCH Fed.Sec.L.Rep. fl 91368 (S.D.N.Y.1964). No cause of action under sections 12(2) and 17 of the Securities Act has been pleaded. These sections, imposing liability on the seller of the security, create a cause of action only in a defrauded purchaser." }, { "docid": "14994560", "title": "", "text": "result in Ruckle v. Roto American Corp., supra. 339 F.2d, at 768. Where plaintiffs allege that directors failed to disclose material information relative to a transaction in corporate securities and used such information for their personal benefit, their complaint does not fail to state a claim under Section 10(b) and Rule 10b-5 merely because all of the directors of the corporation knew of or participated in the alleged fraud. See, Fleischer, “ ‘Federal Corporation Law:’ An Assessment,” 78 Harv.L.Rev. 1146, 1160-67 (1965). Even if O’Neill is authority for the proposition that a corporation may not be defrauded by all of its directors (see, Schoenbaum v. Firstbrook, supra), the validity of O’Neill and of Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2d Cir. 1952), on which it relied, appears to be questioned by two recent decisions of the Court of Appeals- of this Circuit: Vine v. Beneficial Finance Co., 374 F.2d 627 (2d Cir. 1967); A. T. Brod & Co. v. Perlow, 375 F.2d 393 (2d Cir. 1967). While recognizing that the language of Section 10(b) and Rule 10b-5 was “somewhat loosely drawn,” the court concluded in Birnbaum that Section 10(b) was directed : * * * solely at that type of misrepresentation or fraudulent practice usually associated with the sale or purchase of securities rather than at fraudulent mismanagement of corporate affairs, and that Rule X-10B-5 extended protection only to the de frauded purchaser or seller. [193 F.2d, at 464] Quoting Birnbaum with approval, the court in O’Neill added that Rule 10b-5 was not “a mandate to inquire into every allegation of breach of fiduciary duty respecting the issuance or sale of corporate securities.” 339 F.2d, at 768. However, in Vine, supra, the court, after holding that the plaintiff there had constructively sold securities, went on to state that: * * * the Commission advances the alternative argument that plaintiff need not even be a selling stockholder to sue under 10b-5, so long as the Rule has been violated and plaintiff’s stock lost value as a result. The Commission claims in effect that prior decisions in this circuit, often" }, { "docid": "22345750", "title": "", "text": "denied, 396 U.S. 1003, 90 S.Ct. 552, 24 L.Ed.2d 494 (1970), and a complainant is not required to plead evidence. Brady v. Games, 76 U.S.App. D.C. 47, 128 F.2d 754, 755 (1942); Collins v. Rukin, 342 F.Supp. 1282, 1292 (D.Mass.1972). We consider Rule 9 sufficiently complied with here. B. The nature of the fraud. It is well to put to rest, in the light of Judge Metzner’s holding, a slow-to-die contention advanced by appellees principally in oral argument but to some extent in their brief — a contention first authoritatively set forth in Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2d Cir.), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952), viz., that § 10(b) “was directed solely at that type of misrepresentation or fraudulent practice usually associated with the sale or purchase of securities rather than at fraudulent mismanagement of corporate affairs. . . .” Here, appellees tell us, all that appellant is complaining about is “corporate mismanagement,” and as such is in the wrong forum. As long ago as A. T. Brod & Co. v. Perlow, 375 F.2d 393, 397 (2d Cir. 1967), this Birnbaum proposition was no longer the law of this circuit as 10b-5 was there construed to include “all fraudulent schemes in connection with the purchase or sale of securities, whether . a garden type variety of fraud, or . . . a unique form of deception.” While Birnbaum was principally relied upon in O’Neill v. Maytag, supra, which in turn was relied upon by the court below in terms of stating the restrictive view, the authority of these cases (Birnbaum and O’Neill) was, as stated by District Judge Moye in First American Corp. v. Foster, 51 F.R.D. 248, 251 (N.D.Ga.1970), “seriously undercut” by Schoenbaum v. First-brook, 405 F.2d 215 (2d Cir. 1968), rev’g, 405 F.2d 200, cert. denied, 395 U.S. 906, 89 S.Ct. 1747, 23 L.Ed.2d 219 (1969). Thus Judge Feinberg could write in Pop-kin v. Bishop, 464 F.2d 714, 718 (2d Cir. 1972), that “assertions by a defendant that the misconduct complained of ‘really’ amounts to ‘just’ corporate mismanagement" }, { "docid": "13552875", "title": "", "text": "of stock operated as a fraud and deceit * * * in connection with the purchase or sale of any security” (Memorandum in Opposition to Motion to Dismiss, February 3, 1970, p. 11); (c) plaintiff’s eventual sale fulfilled the necessary transfer requirement. (Memorandum in Opposition to Motion to Dismiss, February 3, 1970, pp. 12-13). Section 10(b), in essence, accords the general investing public salutary protection from manipulative or deceptive schemes. The crucial language of Rule 10b-5 with which we must grapple reads “ * * * in connection with the purchase or sale of any security.” The single issue this Court must consider is whether plaintiff’s position as a shareholder of Douglas stock at the time of defendants’ alleged misrepresentations satisfies 10b-5’s jurisdictional requirement that defendants’ failure to disclose material information occur in “connection with the purchase or sale of any security.” (emphasis added). Plaintiff’s entire complaint falls upon his non-compliance with this requirement; 10(b) provides him his broadest remedies. Superintendent of Insurance of State of New York v. Bankers Life & Casualty Co., 300 F.Supp. 1083, 1094 (S.D.N.Y.1969). The Birnbaum rule In Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2d Cir.), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952), this Circuit, after extensive analysis of Section 10b-5’s legislative history concluded that the “section was directed solely at that type of misrepresentation or fraudulent practice usually associated with the sale or purchase of securities rather than at fraudulent mismanagement of corporate affairs, and that Rule X-10B-5 extended protection only to the defrauded purchaser or seller.” Birnbaum thus established the rule that a plaintiff could seek relief under 10(b) only if his injuries arose out of an actual purchase or sale. Since Birnbaum, there has been substantial litigation concerning the continued validity of its holding. While the doctrine has been repeatedly reaffirmed, see e. g., Greenstein v. Paul, 400 F.2d 580 (2d Cir. 1968); O’Neill v. Maytag, 339 F.2d 764 (2d Cir. 1964); Christophides v. Porco, 289 F.Supp. 403 (S.D.N.Y.1968); Chashin v. Mencher, 255 F.Supp. 545 (S.D.N.Y.1965); Keers & Co. v. American Steel & Pump Corp.," }, { "docid": "10776407", "title": "", "text": "currently being litigated, both here and in state court. Plaintiffs claim, however, that they have an equitable interest sufficient to give them standing to pursue their direct claims. Defendants, on the other hand, citing Blue Chip Stamps and Birnbaum v. Newport Steel Corp, 193 F.2d 461 (2d Cir.1952), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952), argue that the plaintiffs were neither purchasers nor sellers of securities because their interest in Sweetwater stock at all times has been too contingent. These arguments can be resolved only by analyzing the “purchaser or seller” requirement as it has been explained in Blue Chip Stamps and Birnbaum. In Birnbaum, the president and chairman of the board of directors of Newport Steel Corp. rejected a proposed merger with Follansbee Steel Corp., a transaction that would have been advantageous to Newport’s stockholders. Instead, he arranged to sell his controlling block of shares to Follansbee at twice the market price. The Second Circuit, in an opinion by Judge Augustus N. Hand, concluded that the 1934 Act “was directed solely at that type of misrepresentation or fraudulent practice usually associated with the sale or purchase of securities rather than at fraudulent mismanagement of corporate affairs.” Birnbaum, 193 F.2d at 464. The court therefore held that Rule 10b-5 “extended protection only to the defrauded purchaser or seller,” Id., and affirmed the trial court’s dismissal of the action for fail ure to state a claim upon which relief could be granted. In Blue Chip Stamps, the plaintiff was offered stock in Blue Chip Corp. under an antitrust reorganization plan mandated by the federal government. Under the plan, a select group was first offered the stock. The stock that was not purchased by this group was then sold through a public offering. Plaintiff in the case was a member of the select group but failed to purchase any Blue Chip stock, allegedly because the prospectus prepared by Blue Chip was “materially misleading in its overly pessimistic appraisal of Blue Chip’s status and future prospects.” 421 U.S. at 726, 95 S.Ct. at 1921. The complaint asserted that" }, { "docid": "10270056", "title": "", "text": "first establish their standing to sue under the “purchaser-seller” doctrine first enunciated in this Circuit in Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2d Cir.), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952). There, plaintiff, a minority shareholder of defendant Newport Steel Corp.,' claimed that he was defrauded by various misrepresentations made by defendant regarding a merger between Newport and the Wilport Company. Suit was brought under § 10(b) and Rule 10b-5 even though plaintiff had not purchased or sold any Newport stock. It was plaintiff’s contention that Rule 10b-5 should be construed to include actions for breach of fiduciary duty by corporate insiders. The court disagreed, holding: “[S]ection [10b] was directed solely at that type of misrepresentation or fraudulent practice usually associated with the sale or purchase of securities rather than at fraudulent mismanagement of corporate affairs, and that Rule X-10B-5 extended protection only to the defrauded purchaser or seller.” 193 F.2d at 464. Although the “Birnbaum rule” has been questioned by the commentators, and modified by the courts, the Second Circuit, in the recent case of Drachman v. Harvey, 453 F.2d 722 (2d Cir. 1971), rev’d and remanded en banc, 453 F.2d 736, 738 (2d Cir. 1972), has re fused to repudiate the “purchaser-seller” requirement. It should be noted that the “Birnbaum rule” contains two proscriptions: (1) that the fraud be of the type that is usually associated with the purchase or sale of securities, and (2) that the protection of Rule 10b-5 is extended only to the defrauded purchaser or seller. The first of these proscriptions delineates the standing requirement, with which this portion of the opinion is concerned; the second is concerned with the elements of privity and causation, discussed infra. Defendants urge this court that five previous decisions in this district arising out of precisely the same acts alleged in plaintiffs’ complaint (Shulof v. Merrill Lynch, Pierce, Fenner & Smith, Inc., CCH Fed.Sec.L.Repr. 93,147 (S.D.N.Y. June 15, 1971); Smachlo v. Merrill Lynch, Pierce, Fenner & Smith, Inc., CCH Fed.Sec.L.Repr. ft 93,148 (S.D.N.Y. May 18, 1971); Hirsh v. Merrill Lynch, Pierce," }, { "docid": "10981176", "title": "", "text": "must demonstrate that the alleged fraud occurred in connection with the purchase and sale of a security. The “purchaser-seller” standing requirement imposed by the “in connection with the purchase and sale of any security” clause of both the statute and the rule was established initially in Birnbaum v. Newport Steel Corp., 193 F.2d 461, 464 (2d Cir.1952), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952), and reaffirmed over twenty years later by the United States Supreme Court in Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 749, 95 S.Ct. 1917, 1931-32, 44 L.Ed.2d 539 (1975). This standing requirement, known as the Birnbaum rule, was articulated by the Second Circuit as follows: Section 10(b) ... was directed solely at that type of misrepresentation or fraudulent practice usually associated with the sale or purchase of securities rather than at fraudulent mismanagement of corporate affairs, and that Rule X-10B-5 extended protection only to the defrauded purchaser or seller. Birnbaum, supra, 193 F.2d at 464. In the case sub judice, plaintiffs Batchelder apparently complain of two fraudulent transactions. First, they claim that Rule 10b-5 was violated during the negotiations leading up to the June 1983 loan for stock transaction with TOSI. Based upon a liberal construction of the pleadings, the Court can find no factual allegations implicating defendants NFL and Putnam in that particular transaction. The alleged fraudulent conduct of these defendants, i.e., their failure to disclose material facts to plaintiffs, did not occur until at least a year later. The defendants’ alleged fraudulent conduct thus was not “in connection with” the initial purchase or sale of securities in TOSI. Plaintiffs also seek relief under Rule 10b-5 for the corporate reorganization effected in September 1984 whereby defendants Gundling and Warburton transferred TOSI’s primary asset, “That Stuff”, to defendants NFL and Putnam in return for corporate positions in defendant NFL. While there was no apparent transfer of securities between the parties at that time, plaintiffs seek to avail themselves of exceptions to the Birnbaum rule. Specifically, plaintiffs seek standing under what is referred to as the “forced seller” doctrine" }, { "docid": "20947914", "title": "", "text": "though plaintiffs may allege an action for corporate mismanagement and waste cognizable by a State court. O’Neill v. Maytag, 339 F.2d 764 (2d Cir. 1964); Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2d Cir. 1952), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952). Plaintiffs contend that a Federal question is presented by the allegations that defendants violated Section 10(b) of the Act in making the public offer for tenders without disclosing the value of Kress’ real estate, in continuing to purchase Kress stock after the termination of the offer and the acquisition of control, and in manipulating the market for Kress stock in order to freeze out minority interests. As noted, however, by Judge McLean, plaintiffs are purchasers, not sellers, of Kress stock and “hence they are not in a position to take advantage of any alleged violation of Section 10(b)” by defendants against sellers. “It is not sufficient to show that a third person, in a separate transaction, was defrauded,” Kremer v. Selheimer, 215 F.Supp. 549, 552 (E.D.Pa.1963), and “plaintiffs must be actual, not aborted, sellers before their claim is cognizable under the Securities Act * * Keers and Co. v. American Steel and Pump Corp., 234 F.Supp. 201, 203 (S.D.N.Y.1964). Indeed, if there was any fraud in connection with defendants’ purchase of Kress stock, it appears from the amended complaint that the plaintiffs were benefitted in purchasing their stock at allegedly depressed prices. Hoover v. Allen, 241 F.Supp. 213, 227 (S.D.N.Y. 1965). Plaintiffs contend that they would not have purchased their Kress stock if defendants had disclosed their intention to mismanage Kress or if defendants had disclosed that certain transactions involving Kress’ real estate constituted corporate waste. However, Section 10(b) is not “a mandate to inquire into every allegation of breach of fiduciary duty * * O’Neill v. Maytag, supra, 339 F.2d at 768, but, on the contrary, is directed “solely at that type of misrepresentation or fraudulent practice usually associated with the sale or purchase of securities rather than at fraudulent mismanagement of corporate affairs.” Birnbaum v. Newport Steel Corp., supra, 193" }, { "docid": "20962747", "title": "", "text": "be' dismissed. To begin with, these provisions require the plaintiff to be either a purchaser or a seller' of a security. As stated by the Court in Birnbaum v. Newport Steel Corp., 193 F.2d 461, 464 (2d Cir.), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952): [SJection 10(b) * * * was directed solely at that type of misrepresentation or fraudulent practice usually associated with the sale or purchase of securities rather than at fraudulent mismanagement of corporate affairs, and that Rule X-10B-5 extended protection only to the defrauded purchaser or seller. It is now clear that a corporation as a purchaser or seller of stock may assert a claim under Section 10(b) and Rule 10b-5. New Park Mining Co. v. Cranmer, 225 F.Supp. 261 (S.D.N.Y. 1963); Pettit v. American Stock Exch., 217 F.Supp. 21 (S.D.N.Y.1963). But a third person cannot assert claims based upon purchases or sales to which he was not a party. Birnbaum v. Newport Steel Corp., supra; New Park Mining Co. v. Cranmer, supra. In this case, Fairchild did not sell any of its stock to the defendant directors. Fairchild’s only “sale” of stock was the' transfer of 1.500.000 Fairchild shares to Republic pursuant to the amalgamation agreement between the two corporations. Pursuant to this agreement, Republic was given several options: (1) selling the 1,-500.000 newly-acquired Fairchild shares to selected purchasers; (2) making a public distribution of said shares; and (3) distributing said shares to existing shareholders (including the defendant directors). (See exhibit B to Uhl affidavit at 27.) It would be straining logic for this Court to hold that Fairchild “sold” its stock to the defendants be cause Republic chose the third alternative and thereby the Fairchild stock eventually found its way into the hands of the defendants. Similarly, Fairchild never purchased any shares of stock from the defendants. The only relevant purchase made by Fairchild was its purchase of 257,000 shares of Republic stock, and this purchase in no way involved the defendants. The defendants did make a stock purchase, but this purchase was of Republic shares, not Fairchild shares." }, { "docid": "6756327", "title": "", "text": "a suit under § 11 of the 1933 Act. -x- * * # * .* “We construe Section 18(a) of the 1934 Act as applicable to a document filed with a national securities exchange. If the registration statement or prospectus or other document was thus filed, something more occurred than the conduct covered by § 11 of the 1933 Act. Nothing in that section is therefore inconsistent with a remedy under § 18(a) of the 1934 Act. Accordingly, the common stockholders may also maintain their action under that section if * * * they amend to allege a filing with a national securities exchange.” [Emphasis added.] In Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2d Cir.), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952), shareholders of the Newport Steel Corporation sued under § 10(b) of the 1934 Act and Rule X-10B-5 of the Securities and Exchange Commission issued thereunder. As a basis for their claim, the shareholders alleged that misrepresentations and other specific acts of fraud were perpetrated upon them as part of a scheme by which a controlling shareholder of Newport was enabled to sell his controlling interest in the corporation to another corporation, at a premium, in violation of his fiduciary obligation. In affirming the lower court’s dismissal of the complaint for failure to state a claim, the court, at 464, said: “When Congress intended to protect the stockholders of a corporation against a breach of fiduciary duty by corporate insiders, it left no doubt as to its meaning. Thus Section 16(b) of the Act of 1934,15 U.S.C.A. § 78p (b), expressly gave the corporate issuer or its stockholders a right of action against corporate insiders using their position to profit in the sale or exchange of corporate securities. The absence of a similar provision in Section 10(b) strengthens the conclusion that that section was directed solely at that type of misrepresentation or fraudulent practice usually associated with the sale or purchase of securities rather than at fraudulent mismanagement of corporate affairs, and that Rule X— 10B-5 extended protection only to the defrauded" }, { "docid": "163739", "title": "", "text": "was “to make the ... [anti-fraud] prohibitions contained in Sec tion 17(a) of the 1933 Act applicable to purchasers as well as to sellers.” Birn-baum, 193 F.2d at 463. Despite the existence of express remedies in the Act, it has long been settled that a private party may sue under section 10(b) and Rule 10b-5. The threat of private suits has become a valuable adjunct to the Securities and Exchange Commission’s enforcement powers. However, the fact that a cause of action exists does not mean that any person can invoke section 10(b)’s protections. “We are dealing with a private cause of action which has been judicially found to exist, and which will have to be judicially delimited one way or another unless and until Congress addresses the question.” Blue Chip, 421 U.S. at 749, 95 S.Ct. at 1931. This case requires us to consider one limitation on the class of potential plaintiffs under Rule 10b-5. A. In Blue Chip, the Supreme Court held that only purchasers or sellers of securities have standing to pursue private claims for damages under section 10(b) and Rule 10b-5. The only difference between that case and this is that appellant seeks only injunc-tive relief. The question is whether that difference means that plaintiff’s action survives Blue Chip. We think that it does not. More than twenty years before Blue Chip, a distinguished panel of the Second Circuit concluded that section 10(b) was “directed solely at that type of misrepresentation or fraudulent practice usually associated with the sale or purchase of securities rather than at fraudulent mismanagement of corporate affairs____” Birnbaum v. Newport Steel Corp., 193 F.2d 461, 464 (2d Cir.), cert, denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952). Relying primarily on the purpose underlying the adoption of Rule 10b-5, Birnbaum held that the rule extended protection “only to the defrauded purchaser or seller,” 193 F.2d at 464, and affirmed dismissal of a complaint that failed to allege that “any of the plaintiffs fell into either class.” Id. After declining an earlier opportunity to rule on Birnbaum’s standing requirements, see Superintendent of" }, { "docid": "23019241", "title": "", "text": "has created duties which exist independently of the sale of stock. While the essence of these duties in some circumstances is honest disclosure, the allegations in the instant case are typical of situations in which deception may be immaterial to a breach of duties imposed under common law principles. The question posed by this case is whether it is sufficient for an action under Rule 10b-5 to allege a breach of one of these general fiduciary duties where the breach does not involve deception. We think that it is not: At least where the duty allegedly breached is only the general duty existing among corporate officers, directors and shareholders, no cause of action is stated under Rule 10b-5 unless there is an allegation of facts amounting to deception. Our conclusion follows from our view of the purpose of § 10(b): “[T]hat section was directed solely at that type of misrepresentation or fraudulent practice usually associated with the sale or purchase of securities rather than at fraudulent mismanagement of corporate affairs.” Birnbaum v. Newport Steel Corp., 193 F.2d 461, 464 (2 Cir.), cert, denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952). There may be difficulties in drawing this line where, as is alleged here, securities transactions are part of an internal struggle for corporate control. But these difficulties do not justify our treating the section, or the rule, as a mandate to inquire into every allegation of breach of fiduciary duty respecting the issuance or sale of corporate securities. We have reached this conclusion despite the contrary position taken by the Securities and Exchange Commission in this case. The Commission has urged that a claim under Rule 10b-5 is stated by allegations that a corporation’s “controlling directors caused it to acquire a large block of its own stock at an excessive price for the purpose of removing the threat to the directors’ control represented by the stock.” Brief of the Securities and Exchange Commission. The Commission’s view may be supported to some extent by the broad dictum in McClure v. Borne Chemical Co., 292 F. 2d 824 (3" } ]

[ { "docid": "13623056", "title": "", "text": "asserted against defendants Gilbert and Ruggles insofar as relief by way of a pecuniary award is sought, and (4) the § 1986 claim against the defendant Cheney. However, the motions to dismiss of the defendants Gilbert and Ruggles are denied in that aspect of the complaint based on § 1983 which seeks declaratory relief against them in their individual and official capacities. A. Defendant Vermont Public Service Board The plaintiff alleges that the defendant PSB conspired to violate and violated his due process and equal protection rights as guaranteed by the Fourteenth Amendment by denying the plaintiff a hearing prior to the termination of his electric service. On the strength of this claimed deprivation, the plaintiff seeks declaratory relief and money damages against the PSB under 42 U.S.C. §§ 1983 and 1985(2) (1970). Ordinarily the disposition of a federal suit against the PSB would require a determination by this Court of whether or not PSB is, in actuality, an “alter-ego” of the state, with the State being the real party in interest. George R. Whitten, Jr., Inc. v. State University Construction Fund, 493 F.2d 177, 179-180 (1st Cir. 1974). This inquiry would give rise to Eleventh Amendment considerations and questions of sovereign immunity. See Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). However, we need not reach these questions here for the reason that the PSB is not a “person” within the meaning of the Civil Rights Statutes. Rosado v. Wyman, 414 F.2d 170, 178 (2d Cir. 1969), rev’d on other grounds, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970); Sykes v. California, 497 F.2d 197, 201 (9th Cir. 1974); Surowitz v. New York City Employees’ Retirement System, 376 F.Supp. 369, 371 (S.D.N.Y.1974). Since the plaintiff’s complaint fails to state a claim upon which relief can be granted against the PSB, its motion to dismiss must be granted. B. Defendants Gilbert and Ruggles The plaintiff claims that these defendants, while members of the PSB, engaged in a conspiracy that violated his due process and equal protection rights in denying him a hearing prior" } ]

[ { "docid": "6924908", "title": "", "text": "view. The great majority of courts which have considered this question have agreed that consumers of a utility service possess a constitutionally protected interest in a continuation of that service and may not be deprived of it without due process of law. Craft v. Memphis Light, Gas & Water Div., 534 F.2d 684 (6th Cir. 1976); Palmer v. Columbia Gas of Ohio, Inc., 479 F.2d 153 (6th Cir. 1973); Condosta v. Vermont Elec. Cooperative, Inc., 400 F.Supp. 358 (D.Vt.1974); Donnelly v. City of Eureka, 399 F.Supp. 64 (D.Kan.1974); Bronson v. Consolidated Edison of N.Y., Inc., 350 F.Supp. 443 (S.D.N.Y.1972); Hattell v. Public Serv. Co. of Colorado, 350 F.Supp. 240 (D.Colo. 1972); Stanford v. Gas Service Co., 346 F.Supp. 717 (D.Kan.1972); Davis v. Weir, 328 F.Supp. 317 (N.D.Ga.1971); Lamb v. Hamblin, 57 F.R.D. 58 (D.Minn.1972). See also Koger v. Guarino, 412 F.Supp. 1375 (E.D.Pa.1976), in which my colleague Judge Broderick recently, held Goss dispositive over Jackson on the “property interest” issue. . It is therefore unnecessary to consider whether the Complaint also states a claim against the Utility Defendants under 28 U.S.C. § 1331. That issue is discussed, below, in connection with the Municipal Defendants’ motions. . The original Motions to Dismiss filed on behalf of the Municipal Defendants did not address the issue of § 1331(a) jurisdiction, but they incorporated by reference the arguments made in the Motion filed on behalf of certain other defendants (PGW, PFMC, and individuals ' connected with them), in which the jurisdictional amount in controversy specifically was challenged. In a subsequent reply memorandum, the Municipal Defendants themselves reiterated the argument that the value of the claims asserted in this lawsuit did not meet the test of § 1331(a). . Ordinarily, the amount in controversy proposed by the plaintiff is accepted for purposes of § 1331(a), if (as here) made in apparent good faith, unless the Court is convinced “to a legal certainty” that the claim actually is for less than the jurisdictional amount. St. Paul Mercury Indemn. Co. v. Red Cab Co., 303 U.S. 282, 288-89, 58 S.Ct. 586, 82 L.Ed. 845 (1938). Moreover, since" }, { "docid": "11419685", "title": "", "text": "of any constitutional rights. . Plaintiff cites several cases for the proposition that utility users possess a constitutionally protected property interest in continued service. However, almost all of those cases deal with the right of the utility “customer” — the person paying the utility bill directly to the utility — as opposed to the rights of the utility user. See Craft v. Memphis Light, Gas & Water Div., 534 F.2d 684, 687 (6th Cir. 1976), aff’d, 429 U.S. 1090, 97 S.Ct. 1098, 51 L.Ed.2d 535 (1978); Palmer v. Columbia Gas of Ohio, Inc., 479 F.2d 153, 156 (6th Cir. 1973); Condosta v. Vermont Elec. Corp., Inc., 400 F.Supp. 358, 365 (D.Vt.1975); Donnelly v. City of Eureka, 399 F.Supp. 64, 67 (D.Kan. 1975); Limuel v. Southern Union Gas Co., 378 F.Supp. 964, 965 (W.D.Tex.1974); Bronson v. Consol. Edison Co. of N. Y. 350 F.Supp. 443, 447 (S.D.N.Y.1972); Hattell v. Public Service Co. of Colorado, 350 F.Supp. 240 (D.Colo.1972); Stanford c. Gas Service Co., .346 F.Supp. 717, 719 (D.Kan.1972). But see Davis v. Weir, 328 F.Supp. .317 (N.D.Ga.1971), aff’d, 497 F.2d 139 (5th Cir. 1974); Koger v. Guarino, 412 F.Supp. 1375, 1386 (E.D. Pa. 1976), aff’d, 549 F.2d 795 (3d Cir. 1977); Lamb v. Hamblin, 57 F.R.D. 58 (D.Minn.1972). Our decision that plaintiff, as a tenant water user, does not have a due process right to water service in this case in no way conflicts with the analysis in those cases. During the pendency of this appeal, the Supreme Court decided Memphis Light, Gas & Water Division v. Craft,------U.S.---, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978). In that case, the Court held that a customer of a municipal water company has a protectible property interest in continued service, and thus some procedures for resolving billing disputes must be provided by the utility. The Craft opinion, however, does nothing to aid plaintiff’s claim in this case because she is not a customer of the Village of Maywood’s Water Department. As is made clear in the text of this opinion, since plaintiff has no contractual relation with the Village, and no statute provides her" }, { "docid": "18449212", "title": "", "text": "service. When a municipality is the sole source of water service, this service becomes a constitutionally protected entitlement, and the termination of this service must be accompanied by 'due process procedures. In Stanford v. Gas Service Co., (D.C.Kan.1972) 346 F.Supp. 717, 721, the right was described in these terms: “. . . whatever the classification of utility services, be they rights, privileges, or entitlements, such life-sustaining services would seem to fall within the same constitutional proteo tions afforded welfare benefits, wages, drivers’ licenses, reputation in the community, and possession of personal property, all as has been previously decided by the United States Supreme Court.” See also Palmer v. Columbia Gas of Ohio, Inc., (6th Cir. 1973) 479 F.2d 153; Ihrke v. Northern States Power Company, (8th Cir. 1972) 459 F.2d 566, vacated as moot, 409 U.S. 815, 93 S.Ct. 66, 34 L.Ed.2d 72; Bronson v. Consolidated Edison Co. of New York, Inc., (S. D.N.Y.1972) 350 F.Supp. 443; Hattell v. Public Service Company of Colorado (D. C.Colo.1972) 350 F.Supp. 240; and Davis v. Weir, (N.D.Ga.1971, 1973) 328 F.Supp. 317, 359 F.Supp. 1023, modified, 497 F.2d 139. In their briefs, the parties have argued the merits of whether or not, under any circumstances, a municipality may terminate utility service for nonpayment of an associated trash collection fee. Plaintiffs, however, have made no argument concerning the constitutionality of the state legislation designed to regulate solid waste management within the State of Kansas; they likewise do not contend that the Solid Waste Management Plan for Greenwood County in any way infringes upon their constitutional rights. Until such time as the City of Eureka provides for adequate notice, and reasonable opportunity to be heard prior to termination of water service, this Court, or a three-judge court would be unable to apply current legal concepts concerning the adequacy of that notice and hearing in terms of due process requirements. It is readily apparent that vital and perhaps conflicting issues concerning public policy are at work here: first, the serious problems presented by solid waste management and the concern of the State of Kansas in improving the" }, { "docid": "11419673", "title": "", "text": ". . . Id. at § 32.1. Thus, the applicable slate law only provides a claim of entitlement to those who have made an application for water service. Since plaintiff has neither a contractual nor a statutory basis to support her claim, we conclude that plaintiff was not deprived of a due process right by defendants’ termination of her water service. Plaintiff correctly points out that other courts have held in other contexts that a water user has a constitutionally protected interest in continued service. However, no court of appeals has discussed this entitlement issue. In Davis v. Weir, 497 F.2d 139 (5th Cir. 1974), the municipality conceded on appeal that it had a duty to provide the actual user with notice prior to termination. Thus, the Fifth Circuit did not have to consider whether a property interest existed. 497 F.2d at 143. In Roger v. Guarino, supra, the Third Circuit affirmed the district court’s determination that there was an entitlement, but did so without an opinion. Three district courts have held that a water user has a legitimate entitlement to continued water service when that service is terminated due to arrearages in the landlord’s bill. See Davis v. Weir, 328 F.Supp. 317 (N.D.Ga.1971); Roger v. Guarino, 412 F.Supp. 1375 (E.D.Pa.1976) and Lamb v. Hamblin, 57 F.R.D. 58 (D.Minn.1972). With all due respect to those courts, we find their reasoning unpersuasive as applied in this case. In Roger, the court merely stated that an interest existed without explaining the basis for entitlement. 412 F.Supp. at 1386. In both of the other decisions, the courts attached dispositive significance to the importance of water as “an absolute necessity of life.” 328 F.Supp. at 321; 57 F.R.D. at 61. That analysis, however, is irrelevant to the question of whether there is an entitlement. As the Supreme Court has made clear, it is the nature, and not the weight or importance, of the plaintiff’s interest that determines whether a property interest exists. Board of Regents v. Roth, 408 U.S. 564, 570-71, 92 S.Ct. 270, 33 L.Ed.2d 548 (1972); Goss v. Lopez, 419 U.S. 565," }, { "docid": "7755226", "title": "", "text": "Bronson v. Consolidated Edison Co., 350 F.Supp. 443, 447 (S.D.N.Y.1972); Stanford, supra, 346 F.Supp. at 721; Davis v. Weir, 328 F.Supp. 317, 321 (N.D.Ga.1971). See Salisbury v. Southern New England Tel. Co., 365 F.Supp. 1023 (D.Conn.1973) (continued telephone service “assume[d to be] ... cognizable right within the due process clause”). But see Jackson v. Metropolitan Edison Co., 483 F.2d 754, 759-62 (3rd Cir. 1973), aff’d on other grounds, 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). Having “determined that due process applies, the question remains what process is due.” Goss, supra, 419 U.S. at 577, 95 S.Ct. at 738, 42 L.Ed.2d at 737, quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484, 494 (1972). Though “[d]ue process is, perhaps, the least frozen concept of our law,” Palmer, supra, 479 F.2d at 165, quoting Griffin v. Illinois, 351 U.S. 12, 20-21, 76 S.Ct. 585, 591, 100 L.Ed. 891, 899-900 (1956), and defies “any concept of inflexible procedures universally applicable,” Goss, supra, 419 U.S. at 578, 95 S.Ct. at 738, 42 L.Ed.2d at 737, quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230, 1236 (1961), Palmer has established that certain utility termination procedures fail to afford constitutional due process. See also Limuel, supra, 378 F.Supp. at 969; Bronson, supra, 350 F.Supp. at 448-50. “As a minimum,” Palmer requires, notice and opportunity to be heard “at a meaningful time and in a meaningful manner.” Palmer, supra, 479 F.2d at 165-66. Notice. Constitutionally sufficient “shut-off notice . . . [must] provide the customer with the information he needs to quickly and intelligently take available steps to prevent the threatened termination of service.” 479 F.2d at 166. Yet the MLG&W “final notice” no better informs customers, like the Crafts, who dispute the underlying liability than the constitutionally deficient notice in Palmer. Like the Columbia Gas notice therein, the MLG&W notice fails to mention “that a dispute concerning the amount due might be resolved through discussion with representatives of the company.” Nor did the notice, at least prior to the opinion" }, { "docid": "11419686", "title": "", "text": "(N.D.Ga.1971), aff’d, 497 F.2d 139 (5th Cir. 1974); Koger v. Guarino, 412 F.Supp. 1375, 1386 (E.D. Pa. 1976), aff’d, 549 F.2d 795 (3d Cir. 1977); Lamb v. Hamblin, 57 F.R.D. 58 (D.Minn.1972). Our decision that plaintiff, as a tenant water user, does not have a due process right to water service in this case in no way conflicts with the analysis in those cases. During the pendency of this appeal, the Supreme Court decided Memphis Light, Gas & Water Division v. Craft,------U.S.---, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978). In that case, the Court held that a customer of a municipal water company has a protectible property interest in continued service, and thus some procedures for resolving billing disputes must be provided by the utility. The Craft opinion, however, does nothing to aid plaintiff’s claim in this case because she is not a customer of the Village of Maywood’s Water Department. As is made clear in the text of this opinion, since plaintiff has no contractual relation with the Village, and no statute provides her with an entitlement, she has no basis upon which to claim that there has been a deprivation of any property within the meaning of the Fourteenth Amendment. . See Goldberg v. Kelly, 397 U.S. 254, 262, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (State Welfare Code). . See Perry v. Sindermann, 408 U.S. 593, 600, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) (express contract or de facto tenure policy sufficient to create property interest). . We are not unmindful of the inconvenience that our decision will cause individuals such as plaintiff who in the future will have their water service disrupted without notice. However, in light of our discussion in part III of this opinion, it is reasonable to assume that that disruption will be for only a short period of time. In addition, we should note that our decision has the incidental effect of saving municipal utilities tlie potentially onerous burden of investigating and providing some form of notice and .^jpunurtuy tor a nearing in regara to every request for termination of service. ." }, { "docid": "6924907", "title": "", "text": "may be that the Third Circuit did not have sufficient material before it to appreciate fully the potentially devastating impact of utility shut-offs on the lives of consumers. During recent winters, a number of deaths and injuries have been reported in several states, including Pennsylvania, which apparently resulted from exposure to freezing temperatures after utility companies terminated heating services for alleged non-payment of bills. See, e. g., The Philadelphia Inquirer, Jan. 23, 1976, at p. 1-C, and Jan. 28, 1976, at p. 1-A; The Boston Globe, Feb. 9, 1974, at p. 17; The New York Times, Jan. 6; 1'975, at p. 1, and Dec. 27, 1973, at p. 14. . See, e.g., Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). . Since 1973, when the Third Circuit handed down its decision in Jackson, its position on the “property interest” issue has remained a minority view. The great majority of courts which have considered this question have agreed that consumers of a utility service possess a constitutionally protected interest in a continuation of that service and may not be deprived of it without due process of law. Craft v. Memphis Light, Gas & Water Div., 534 F.2d 684 (6th Cir. 1976); Palmer v. Columbia Gas of Ohio, Inc., 479 F.2d 153 (6th Cir. 1973); Condosta v. Vermont Elec. Cooperative, Inc., 400 F.Supp. 358 (D.Vt.1974); Donnelly v. City of Eureka, 399 F.Supp. 64 (D.Kan.1974); Bronson v. Consolidated Edison of N.Y., Inc., 350 F.Supp. 443 (S.D.N.Y.1972); Hattell v. Public Serv. Co. of Colorado, 350 F.Supp. 240 (D.Colo. 1972); Stanford v. Gas Service Co., 346 F.Supp. 717 (D.Kan.1972); Davis v. Weir, 328 F.Supp. 317 (N.D.Ga.1971); Lamb v. Hamblin, 57 F.R.D. 58 (D.Minn.1972). See also Koger v. Guarino, 412 F.Supp. 1375 (E.D.Pa.1976), in which my colleague Judge Broderick recently, held Goss dispositive over Jackson on the “property interest” issue. . It is therefore unnecessary to consider whether the Complaint also states a claim against" }, { "docid": "11419684", "title": "", "text": "who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. S 1983. . The district court’s jurisdiction over the individual defendants was based on 28 U.S.C. § 1343(3) and jurisdiction over the Village was based on 28 U.S.C. § 1331. . To state a claim under 42 U.S.C. § 1983, plaintiff must demonstrate both that there has been state action and that that action has deprived plaintiff of a constitutional right. Ad-ickes v. Kress & Co., 398 U.S. 144, 169, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). There is no dispute here that the action of the Village’s Water Department constituted state action. The only issue is whether plaintiff has been deprived of any constitutional rights. . Plaintiff cites several cases for the proposition that utility users possess a constitutionally protected property interest in continued service. However, almost all of those cases deal with the right of the utility “customer” — the person paying the utility bill directly to the utility — as opposed to the rights of the utility user. See Craft v. Memphis Light, Gas & Water Div., 534 F.2d 684, 687 (6th Cir. 1976), aff’d, 429 U.S. 1090, 97 S.Ct. 1098, 51 L.Ed.2d 535 (1978); Palmer v. Columbia Gas of Ohio, Inc., 479 F.2d 153, 156 (6th Cir. 1973); Condosta v. Vermont Elec. Corp., Inc., 400 F.Supp. 358, 365 (D.Vt.1975); Donnelly v. City of Eureka, 399 F.Supp. 64, 67 (D.Kan. 1975); Limuel v. Southern Union Gas Co., 378 F.Supp. 964, 965 (W.D.Tex.1974); Bronson v. Consol. Edison Co. of N. Y. 350 F.Supp. 443, 447 (S.D.N.Y.1972); Hattell v. Public Service Co. of Colorado, 350 F.Supp. 240 (D.Colo.1972); Stanford c. Gas Service Co., .346 F.Supp. 717, 719 (D.Kan.1972). But see Davis v. Weir, 328 F.Supp. .317" }, { "docid": "18449211", "title": "", "text": "due and payable, plus interest thereon at the rate of seven percent (7%) per annum from the date that such charges should have been paid. Any person aggrieved by a decision of the Sanitation Officer made pursuant to this section may in writing appeal such decision to the City Council, and the council’s decision on the matter shall be final.” At the hearing, and according to the Stipulation of Facts filed subsequent thereto, the Court has been advised that “The City has agreed to provide, by ordinance, for pre-termination hearings and notice of right to same pursuant to due process standards, in return for the Plaintiffs’ agreement to dismiss all claims for damages herein against the named Defendants.” The nature of the proposed amended ordinance, and its provisions for notice and hearing were not disclosed to the Court. At this stage of the proceeding, it is clear that defendants have conceded that due process provisions of the constitution require that notice and opportunity to be heard must be provided to water subscribers before termination of service. When a municipality is the sole source of water service, this service becomes a constitutionally protected entitlement, and the termination of this service must be accompanied by 'due process procedures. In Stanford v. Gas Service Co., (D.C.Kan.1972) 346 F.Supp. 717, 721, the right was described in these terms: “. . . whatever the classification of utility services, be they rights, privileges, or entitlements, such life-sustaining services would seem to fall within the same constitutional proteo tions afforded welfare benefits, wages, drivers’ licenses, reputation in the community, and possession of personal property, all as has been previously decided by the United States Supreme Court.” See also Palmer v. Columbia Gas of Ohio, Inc., (6th Cir. 1973) 479 F.2d 153; Ihrke v. Northern States Power Company, (8th Cir. 1972) 459 F.2d 566, vacated as moot, 409 U.S. 815, 93 S.Ct. 66, 34 L.Ed.2d 72; Bronson v. Consolidated Edison Co. of New York, Inc., (S. D.N.Y.1972) 350 F.Supp. 443; Hattell v. Public Service Company of Colorado (D. C.Colo.1972) 350 F.Supp. 240; and Davis v. Weir, (N.D.Ga.1971, 1973)" }, { "docid": "7755224", "title": "", "text": "(three-judge court); Nelson v. Likins, 389 F.Supp. 1234, 1239 (D.Minn.1974); Mohr v. Jordan, 370 F.Supp. 1149, 1151 n.3 (D.Md.1974), aff’d, (No. 74-1496, 4th Cir., filed July 31, 1974); Rappaport v. Katz, 62 F.R.D. 512, 515 (S.D. N.Y.1974). DUE PROCESS On the merits, the Fourteenth Amendment requires due process only if “state action” is “deprivftng] any person of life, liberty or property.” See, e. g., Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 735-36, 42 L.Ed.2d 725, 735 (1975); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349, 357, 95 S.Ct. 449, 453-57, 42 L.Ed.2d 477, 483, 488 (1974). Appellees claim that the due process clause has no application because MLG&W “operates just like a private utility in that it is required to have rates sufficient to meet its services . . . and has no governmental immunity.” We conclude, however, that since it is municipally owned and controlled, the actions of MLG&W are clearly “state actions.” Davis v. Weir, 497 F.2d 139, 143-44 (5th Cir. 1974); Stanford v. Gas Serv. Co., 346 F.Supp. 717, 720 (D.Kan.1972). Jackson, supra, is inapposite because the majority and two dissenters independently recognized the distinction between “private utility companies] and municipal utility,” 419 U.S. at 351, 95 S.Ct. at 454 n.8, 42 L.Ed.2d at 484, or “state [government]-owned” companies, 419 U.S. at 372, 95 S.Ct. at 464, 42 L.Ed.2d at 496. The majority, in fact, at least five times recognized that Metropolitan Edison was “private” or “privately owned and operated.” 419 U.S. at 349-351, 95 S.Ct. at 451, 453, 454 n.8, 457, 42 L.Ed.2d at 482-484. Though the Supreme Court has refrained from deciding whether a “claim to continued [utility] service was ‘property’ ” for due process purposes, 419 U.S. at 359, 95 S.Ct. at 457, 42 L.Ed.2d at 488, this court in Palmer, supra, implicitly assumed and other courts have expressly held that claims to continued utility service constitute “property.” Condosta v. Vermont Electric Cooperative, Inc., 400 F.Supp. 358, 365-366 (D.Vt. 1975); Donnelly v. City of Eureka, 399 F.Supp. 64, 67-68 (D.Kan.1975); Limuel v. Southern Union Gas Co., 378 F.Supp. 964, 966-67 (W.D.Tex.1974);" }, { "docid": "500025", "title": "", "text": "Defendant has deprived her of a right secured by the “Constitution and laws” of the United States; and 2) That Defendant acted “under color of law.” See Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The constitutional violation alleged by Plaintiff, the deprivation of “property” without “due process of law,” is clearly encompassed by § 1983. Lynch v. Household Finance Corp., 405 U.S. 538, 92 S. Ct. 1113, 31 L.Ed.2d 424 (1972). To invoke the Due Process Clause, however, Plaintiff must demonstrate a “property” interest as evidenced by “a legitimate claim of entitlement.” Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). The majority of courts considering the question have had no difficulty in considering continued utility service without termination except for cause to be a “property” right within the meaning of the Fourteenth Amendment. See Palmer v. Columbia Gas of Ohio, Inc., 479 F.2d 153 (6th Cir. 1973); Ihrke v. Northern States Power Co., 459 F.2d 566 (8th Cir. 1972), vacated as moot, 409 U.S. 815, 93 S.Ct. 66, 34 L.Ed.2d 72 (1972); Salisbury v. Southern New England Telephone Co., 365 F.Supp. 1023 (D.Conn.1973); Bronson v. Consolidated Edison Co. of New York, 350 F.Supp. 443 (S.D.N.Y.1972); Hattell v. Public Service Company of Colorado, 350 F.Supp. 240 (D. Colo.1972); Stanford v. Gas Service Co., 346 F.Supp. 717 (D.Kansas 1972); Lamb v. Hamblen, 57 F.R.D. 58 (D. Minn.1972). Cf. Jackson v. Metropolitan Edison Company, 483 F.2d 754 (3rd Cir. 1973). The evidence in the instant case abundantly supports the proposition that the consumer’s expectation-of continued availability of service from Defendant, as a public utility, was “secured by ‘existing rules or understandings.’ ” Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972). Tex.Rev.Civ.Stat.Ann. art. 1446a, § 1, a statute designed to protect public utilities from disruption by picketing, threats or intimidation, states: It is hereby declared the policy of this state that continuous service by public utilities furnishing natural or artificial gas ... to the public is absolutely essential to" }, { "docid": "7755225", "title": "", "text": "720 (D.Kan.1972). Jackson, supra, is inapposite because the majority and two dissenters independently recognized the distinction between “private utility companies] and municipal utility,” 419 U.S. at 351, 95 S.Ct. at 454 n.8, 42 L.Ed.2d at 484, or “state [government]-owned” companies, 419 U.S. at 372, 95 S.Ct. at 464, 42 L.Ed.2d at 496. The majority, in fact, at least five times recognized that Metropolitan Edison was “private” or “privately owned and operated.” 419 U.S. at 349-351, 95 S.Ct. at 451, 453, 454 n.8, 457, 42 L.Ed.2d at 482-484. Though the Supreme Court has refrained from deciding whether a “claim to continued [utility] service was ‘property’ ” for due process purposes, 419 U.S. at 359, 95 S.Ct. at 457, 42 L.Ed.2d at 488, this court in Palmer, supra, implicitly assumed and other courts have expressly held that claims to continued utility service constitute “property.” Condosta v. Vermont Electric Cooperative, Inc., 400 F.Supp. 358, 365-366 (D.Vt. 1975); Donnelly v. City of Eureka, 399 F.Supp. 64, 67-68 (D.Kan.1975); Limuel v. Southern Union Gas Co., 378 F.Supp. 964, 966-67 (W.D.Tex.1974); Bronson v. Consolidated Edison Co., 350 F.Supp. 443, 447 (S.D.N.Y.1972); Stanford, supra, 346 F.Supp. at 721; Davis v. Weir, 328 F.Supp. 317, 321 (N.D.Ga.1971). See Salisbury v. Southern New England Tel. Co., 365 F.Supp. 1023 (D.Conn.1973) (continued telephone service “assume[d to be] ... cognizable right within the due process clause”). But see Jackson v. Metropolitan Edison Co., 483 F.2d 754, 759-62 (3rd Cir. 1973), aff’d on other grounds, 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). Having “determined that due process applies, the question remains what process is due.” Goss, supra, 419 U.S. at 577, 95 S.Ct. at 738, 42 L.Ed.2d at 737, quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484, 494 (1972). Though “[d]ue process is, perhaps, the least frozen concept of our law,” Palmer, supra, 479 F.2d at 165, quoting Griffin v. Illinois, 351 U.S. 12, 20-21, 76 S.Ct. 585, 591, 100 L.Ed. 891, 899-900 (1956), and defies “any concept of inflexible procedures universally applicable,” Goss, supra, 419 U.S. at 578, 95 S.Ct. at" }, { "docid": "19685029", "title": "", "text": "on grounds of mootness, 409 U.S. 815, 93 S.Ct. 66, 34 L.Ed.2d 72 (1972). In Ihrke, the plaintiffs sought an order declaring that the rules and regulations of the utility were unconstitutional in that they permitted termination of utility service without adequate prior notice and hearing. The Court held that the trial court had not erred in refusing to allow the lawsuit to be maintained as a class action by stating: It is possible that all such persons who are actual subscribers would share the desire of the Irhkes for a change in the rules and regulations which would require adequate notice prior to termination of their utility service. But it is highly unlikely that the claim of the Ihrkes that a hearing should be required after notice and prior to termination, is typical of the claims of the class. It is likely that some customer of Northern would feel that the additional expense of such procedure, if it is indeed required, could conceivably result in a rate increase to all customers, and this certainly would not be considered desirable by all the subscribers of Northern. 459 F.2d at 572-73. This reasoning has not, however, been followed by the majority of courts which have allowed utility termination cases to be maintained as class actions. Davis v. Weir, 497 F.2d 139, 146-47 (5th Cir. 1974); Palmer v. Columbia Gas Company, 342 F.Supp. 241 (N.D.Ohio 1972) aff’d 479 F.2d 153 (4th Cir. 1973); Limuel v. Southern Union Gas Co., 378 F.Supp. 964 (W.D.Texas 1974); Lamb v. Hamblin, 57 F.R.D. 58 (D.Minn.1972); Stanford v. Gas Service Company, 346 F.Supp. 717 (D.Kansas 1972). In Cottrell v. Virginia Electric & Power Co., 62 F.R.D. 516, 520 (E.D.Va.1974), a suit alleging that the termination of electrical service without adequate notice and a prior evidentiary hearing violated the plaintiff’s due process rights under the Fourteenth Amendment, it was stated that: There are diverse issues of fact in all class actions. The individual members of a class will invariably reach an adversary posture with the defendant in different ways. But Rule 23(a)(3) does not require that the factual" }, { "docid": "19685030", "title": "", "text": "would not be considered desirable by all the subscribers of Northern. 459 F.2d at 572-73. This reasoning has not, however, been followed by the majority of courts which have allowed utility termination cases to be maintained as class actions. Davis v. Weir, 497 F.2d 139, 146-47 (5th Cir. 1974); Palmer v. Columbia Gas Company, 342 F.Supp. 241 (N.D.Ohio 1972) aff’d 479 F.2d 153 (4th Cir. 1973); Limuel v. Southern Union Gas Co., 378 F.Supp. 964 (W.D.Texas 1974); Lamb v. Hamblin, 57 F.R.D. 58 (D.Minn.1972); Stanford v. Gas Service Company, 346 F.Supp. 717 (D.Kansas 1972). In Cottrell v. Virginia Electric & Power Co., 62 F.R.D. 516, 520 (E.D.Va.1974), a suit alleging that the termination of electrical service without adequate notice and a prior evidentiary hearing violated the plaintiff’s due process rights under the Fourteenth Amendment, it was stated that: There are diverse issues of fact in all class actions. The individual members of a class will invariably reach an adversary posture with the defendant in different ways. But Rule 23(a)(3) does not require that the factual background of the named plaintiff’s case be identical with that of other members of the class, but that the disputed issue occupy essentially the same degree of centrality to the named plaintiffs’ claim as to that of other members of their purported class. The Cottrells allege they were denied an opportunity for a hearing prior to termination and that such denial is unconstitutional. The sole relevant factual assertion is not only typical of the members of the purported class, it defines them. And for each the simple legal claim deriving from that fact is the same. The Cottrells’ claim, for purposes of this suit, is not only typical of, but identical to the claims of the purported class. Finally, in this regard, “ ‘Typicalness’ is not a subjective test, authorizing a judge to dismiss a class action based on a substantial legal claim where he thinks some members of the class may prefer to leave the violation of their rights unremedied.” But it was exactly-this erroneous interpretation of the term that was applied in Ihrke" }, { "docid": "19685055", "title": "", "text": "v. Roth, supra, at 570, n. 8 [92 S.Ct. 2701]. A 10-day suspension from school is not de minimis in our view and may not be imposed in complete disregard of the Due Process Clause. 419 U.S. at 572-576, 95 S.Ct. at 735-737, 42 L.Ed.2d at 733-736. Again, in Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 901, 47 L.Ed.2d 18, 31 (1976), the Supreme Court, addressing itself to the termination of social security disability benefits stated: Procedural due process imposes constraints on governmental decisions which deprive individuals of “liberty” or “property” interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendments. The Secretary does not contend that procedural due process is inapplicable to terminations of social security disability benefits. He recognizes, as has been implicit in our prior decisions, that the interest of an individual in continued receipt of these benefits is a statutorily created “property” interest protected by the Fifth Amendment. (Citations omitted). We therefore conclude that a water user has a “legitimate claim of entitlement” to continued water service which is a property interest to which the Due Process Clause of the Fourteenth Amendment applies. Although the defendants are not constitutionally obligated to establish and maintain water service for the benefit of their citizens, once having done so, a user has a legitimate claim of entitlement to continued service absent sufficient cause for termination consistent with the procedural protections of the Due Process Clause. Certainly, the right to receive water service is not a de minimis property interest. While the ramifications of termination of water service and the effect upon the defendants of providing due process will be factors which will be taken into consideration in determining the ultimate relief to which plaintiffs are entitled, this does not affect the fact that water service is an entitlement to which the requirements of due process attach. Bell v. Burson, 402 U.S. 535, 540, 91 S.Ct. 1586, 1590, 29 L.Ed.2d 90, 95 (1971). Indeed, many courts which have considered the issue have agreed that utility users possess a constitutionally protected interest in" }, { "docid": "19685057", "title": "", "text": "continued utility service, and therefore may not be deprived of service without due process of law. Craft v. Memphis Light, Gas and Water Division, 534 F.2d 684 (6th Cir. 1976); Palmer v. Columbia Gas of Ohio, Inc., 479 F.2d 153 (6th Cir. 1973); Condosta v. Vermont Electric Cooperative, Inc., 400 F.Supp. 358 (D.Vt.1974); Donnelly v. City of Eureka, 399 F.Supp. 64 (D.Kan.1975); Limuel v. Southern Union Gas Co., 378 F.Supp. 964 (W.D.Texas 1974); Davis v. Weir, 328 F.Supp. 317 (N.D.Ga.1971), aff’d 497 F.2d 139 (5th Cir. 1974); Bronson v. Consolidated Edison Co. of New York, Inc., 350 F.Supp. 443 (S.D.N.Y.1972); Hattell v. Public Service Company of Colorado, 350 F.Supp. 240 (D.Colo.1972); Lamb v. Hamblin, 57 F.R.D. 58 (D.Minn.1972); Stanford v. Gas Service Co., 346 F.Supp. 717 (D.Kan.1972). Having determined that due process applies, the question becomes whether the procedures adopted by the defendants in connection with the termination of water service to users comply with the Due Process Clause of the Fourteenth Amendment. “[T]he interpretation and application of the Due Process Clause are intensely practical matters” and “the very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.” The fundamental requirement of due process is the opportunity to be heard “at a meaningful time and in a meaningful manner,” a right that “has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to ... contest.” As the Supreme Court stated in its recent decision in Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18, 32 (1976): This Court consistently has held that some form of hearing is required before an individual is finally deprived of a property interest. The “right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of criminal conviction, is a principal basic to our society.” (Citations omitted). The Supreme Court then set forth the following guidelines to determine whether the procedures adopted by the state comply with the Due Process" }, { "docid": "19685056", "title": "", "text": "to continued water service which is a property interest to which the Due Process Clause of the Fourteenth Amendment applies. Although the defendants are not constitutionally obligated to establish and maintain water service for the benefit of their citizens, once having done so, a user has a legitimate claim of entitlement to continued service absent sufficient cause for termination consistent with the procedural protections of the Due Process Clause. Certainly, the right to receive water service is not a de minimis property interest. While the ramifications of termination of water service and the effect upon the defendants of providing due process will be factors which will be taken into consideration in determining the ultimate relief to which plaintiffs are entitled, this does not affect the fact that water service is an entitlement to which the requirements of due process attach. Bell v. Burson, 402 U.S. 535, 540, 91 S.Ct. 1586, 1590, 29 L.Ed.2d 90, 95 (1971). Indeed, many courts which have considered the issue have agreed that utility users possess a constitutionally protected interest in continued utility service, and therefore may not be deprived of service without due process of law. Craft v. Memphis Light, Gas and Water Division, 534 F.2d 684 (6th Cir. 1976); Palmer v. Columbia Gas of Ohio, Inc., 479 F.2d 153 (6th Cir. 1973); Condosta v. Vermont Electric Cooperative, Inc., 400 F.Supp. 358 (D.Vt.1974); Donnelly v. City of Eureka, 399 F.Supp. 64 (D.Kan.1975); Limuel v. Southern Union Gas Co., 378 F.Supp. 964 (W.D.Texas 1974); Davis v. Weir, 328 F.Supp. 317 (N.D.Ga.1971), aff’d 497 F.2d 139 (5th Cir. 1974); Bronson v. Consolidated Edison Co. of New York, Inc., 350 F.Supp. 443 (S.D.N.Y.1972); Hattell v. Public Service Company of Colorado, 350 F.Supp. 240 (D.Colo.1972); Lamb v. Hamblin, 57 F.R.D. 58 (D.Minn.1972); Stanford v. Gas Service Co., 346 F.Supp. 717 (D.Kan.1972). Having determined that due process applies, the question becomes whether the procedures adopted by the defendants in connection with the termination of water service to users comply with the Due Process Clause of the Fourteenth Amendment. “[T]he interpretation and application of the Due Process Clause are intensely practical" }, { "docid": "7759228", "title": "", "text": "supra, 402 U.S. at 539, 91 S.Ct. at 1589; Goldberg v. Kelly, supra, 397 U.S. at 262, 90 S.Ct. at 1017. This doctrine contemplates no distinction between “rights” and “privileges.” Goldberg v. Kelly, supra. And it encompasses any significant interest in property even if disputed. Fuentes v. Shevin, supra, 92 S.Ct. at 1997. There can be little doubt that utility services “fall within the same constitutional protections afforded welfare benefits, wages, drivers’ licenses, reputation in the community, and possession of personal property. . . . ” Stanford v. Gas Service Co., 346 F. Supp. 717, 721 (D.Kan.1972); Bronson v. Consolidated Edison Co. of New York, Inc., 350 F.Supp. 443 (S.D.N.Y.1972). Termination of water service inflicts hardships on the consumer that transcend the deprivation of other protected interests. Cf. Palmer v. Columbia Gas Co., 342 F.Supp. 241, 244 (N.D.Ohio 1972). Moreover, in operating as an apparent monopoly the Water Department confers an important benefit on its customers sufficiently analogous to other “entitlements” recognized in recent Supreme Court decisions. Davis v. Weir, 328 F.Supp. 317, 321 (N.D.Ga.1971). The “entitlement,” however, is limited to those who are willing to assume financial responsibility for the service. Neither state law nor the Constitution recognizes a right to free water service. Morgan v. Kennedy, 331 F.Supp. 861 (D.Neb.1971). In considering the relief to which plaintiffs may be entitled, the Court should assess existing remedies available to them. In Lucas v. Wisconsin Electric Power Co., 466 F.2d 638 (7th Cir. 1972) the Seventh Circuit held that the availability of informal and judicial remedies obviated the need for an administrative hearing before an impartial examiner. In addition to informal mechanisms for dispute resolution, the Court noted three legal remedies available to the customer: (1) the equitable remedy of injunction; (2) payment under protest and suit for refund; and (3) remedy at law for damages. As the majority conceded, informal avenues for resolution of credit disputes do not operate as a legal remedy; they merely minimize the need for resort to a more formal procedure. Id,., at 648. In many instances there may be no need for consumers to" }, { "docid": "7759227", "title": "", "text": "The dispute focuses on plaintiffs’ rights under the Constitution. Plaintiffs’ due process contention rests upon a series of recent Supreme Court decisions which require notice and an opportunity for a hearing before certain administrative action can be taken. See Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) (hearing required before goods may be repossessed) ; Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971) (hearing required before suspension of uninsured motorists’ license); Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971) (hearing required before posting of notice forbidding sale of liquor to an individual) ; Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (notice and hearing required before termination of welfare benefits); Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) (hearing required before garnishment of wages). These decisions have developed a doctrine of entitlements to protect what has been variously described as “statutory entitlements” or “important interests” Bell v. Burson, supra, 402 U.S. at 539, 91 S.Ct. at 1589; Goldberg v. Kelly, supra, 397 U.S. at 262, 90 S.Ct. at 1017. This doctrine contemplates no distinction between “rights” and “privileges.” Goldberg v. Kelly, supra. And it encompasses any significant interest in property even if disputed. Fuentes v. Shevin, supra, 92 S.Ct. at 1997. There can be little doubt that utility services “fall within the same constitutional protections afforded welfare benefits, wages, drivers’ licenses, reputation in the community, and possession of personal property. . . . ” Stanford v. Gas Service Co., 346 F. Supp. 717, 721 (D.Kan.1972); Bronson v. Consolidated Edison Co. of New York, Inc., 350 F.Supp. 443 (S.D.N.Y.1972). Termination of water service inflicts hardships on the consumer that transcend the deprivation of other protected interests. Cf. Palmer v. Columbia Gas Co., 342 F.Supp. 241, 244 (N.D.Ohio 1972). Moreover, in operating as an apparent monopoly the Water Department confers an important benefit on its customers sufficiently analogous to other “entitlements” recognized in recent Supreme Court decisions. Davis v. Weir, 328 F.Supp. 317, 321 (N.D.Ga.1971)." }, { "docid": "22997340", "title": "", "text": "was nothing that directly forbade restaurants from serving both races. The Supreme Court found that the regulations placed burdens upon restaurants serving both races and concluded : “[t]hat the State through its regulations has become involved to such a significant extent in bringing about restaurant segregation that appellants’ trespass convictions must be held to reflect that state policy and therefore to violate the Fourteenth Amendment.” 378 U.S. at 156-157, 84 S.Ct. at 1695. In Moose Lodge, supra, the trial court directed attention to the many ways in which the Pennsylvania Liquor Control Board exerted its regulatory will over private clubs as proof of the pervasive nature of state action there. 407 U.S. at 176-177, 92 S.Ct. 1965. But the Court pointed out that none of the regulations had significance on the issue for decision, that is, the establishing or enforcing of discriminatory guest policies. Here, appellees point to a comprehensive system for sale of collateral, notice of sale, and application of payments. None of these requirements addresses itself to the issue of when and whether private repossession will be used or whether formal court action will be preferred. There is no “pervasive” state action directed to self-help repossession to require its use. It is simply named as one of two already existing alternatives. A similar issue has been involved in non-racial cases involving utility service termination procedures of privately owned utility companies. Palmer v. Columbia Gas, Inc., 479 F.2d 153 (6th Cir. 1973); Ihrke v. Northern States Power Co., 459 F.2d 566 (8th Cir.), vacated as moot, 409 U.S. 815, 93 S.Ct. 66, 34 L. Ed.2d 72 (1972); Bronson v. Ccmsolidated Edison, 350 F.Supp. 443 (S.D.N.Y. 1972); Hattel v. Public Service Co., 350 F.Supp. 240 (D.Colo.1972); Stanford v. Gas Service Co., 346 F.Supp. 717 (D.Kan. 1972). Contra, Lucas v. Wisconsin Electric Power Co., 466 F.2d 638 (7th Cir. 1972); Jackson v. Metropolitan Edison Co., 348 F.Supp. 954 (M.D.Pa.1972). In Palmer, an Ohio statute authorized the utility to enter the premises of a customer who allegedly had not paid his bill, to disconnect service and remove equipment. Stressing the monopolistic character" } ]

[ { "docid": "22117655", "title": "", "text": "is the material element and consideration of the contract. It cannot be in the contemplation of the parties, that the assured, by his own criminal act, shall deprive the contract of its material element; shall vary and enlarge the risk, and hasten the day of payment of the insurance money. The doctrine asserted in Fauntleroy's case, that death by the .hands of public justice, the punishment for the commission of crime, avoids a contract of life insurance, though it is not so expressed in the contract, has not, so far as we have examined, been questioned, though the case itself may have led to the very general introduction of the exception into policies. The same considerations and reasoning which support the doctrine seem to lead, of necessity, to the conclusion, that voluntary, criminal self-destruction, suicide, as defined at common law, should be implied as an exception to the liability of the insurer, or, rather, as not within the risks contemplated by the parties, reluctant as the courts may be to introduce by construction or implication exceptions into such contracts, which usually contain special exceptions.” Again : “ The fair and just interpretation of a contract of life insurance, made Avith the assured, is, that the risk is of death proceeding from other causes than the voluntary act óf the assured, producing, or intended to produce it; ” and that “ the extinction of life by disease, or by accident, not suicide, voluntary and intentional, by the assured, while in his.sens.es, is the risk intended; and it is not intended that; without the hazard of loss, the assured may safely commit crime.” In support of 'the general proposition that the law will not enforce contracts and agreements that are against the public good, and, therefore, are forbidden by public policy, reference is often made to the case of The Amicable Society &c. v. Holland, 4 Bligh, N. S. 194, 211, known as Fauntleroy's case. That was an action by assignees in bankruptcy to secure the amount due on a policy of insurance stipulating for the payment of a certain sum, upon" } ]

[ { "docid": "8946076", "title": "", "text": "third parties, elements crucial to the allowance of a premium deduction.” 914 F.2d at 412. Subsequent to Gulf the Tax Court established a three-step analysis to determine if insurance existed in cases wherein the subsidiary insurer did business for parties unrelated to the parent and its affiliates. These cases are Sears, Roebuck & Co. v. Commissioner, 96 T.C. 61 (1991), as modified, 96 T.C. 671 (1991); The Harper Group v. Commissioner, 96 T.C. 45 (1991); and AMERCO v. Commissioner, 96 T.C. 18 (1991). The Tax Court analysis, based on Le Gierse, involves “presence of insurance risk,” “risk shifting and risk distributing,” and “commonly accepted notions of insurance.” With respect to “presence of insurance risk” the Tax Court stated the following: Basic to any insurance transaction must be risk. An insured faces some hazard; an insurer accepts a premium and agrees to perform some act if or when the loss event occurs. If no risk exists, then insurance cannot be present. “Insurance risk” is required; investment risk is insufficient. If parties structure an apparent insurance transaction so as to effectively eliminate the effect of insurance risk therein, insurance cannot be present. AMERCO, 96 T.C. at 38-39. With respect to “risk shifting and risk distributing,” the Tax Court stated that while Le Gierse established that insurance requires risk shifting and risk distributing, Le Gierse did not define these terms. The Tax Court relied on the Tenth Circuit’s decision in Beech Aircraft for the following definition: “ ‘Risk-shifting’ means one party shifts his risk of loss to another, and ‘risk-distributing’ means that the party assuming the risk distributes his potential liability, in part, among others.” Harper, 96 T.C. at 58-59, and AMERCO, 96 T.C. at 40 (quoting Beech Aircraft, 797 F.2d at 922). With respect to the third requirement of “com monly accepted notions of insurance,” the Tax Court did not discuss how to apply the requirement. The court dealt with this requirement by applying, the facts of each case to determine if insurance existed in a commonly understood manner. Sears involved a wholly-owned subsidiary insurer of Sears, Robuck and Co. (“Sears”). The" }, { "docid": "23163690", "title": "", "text": "all, only add to the remoteness of the reversionary interest. In our view of the case we need not consider the alternative argument urged by the United States to the effect that the specific amendments to § 302 (c) are also applicable since the decedent actually received an annual return from the contracts for a period which did not in fact end before his death. Nor do we reach any questions of valuation of the decedent’s reversionary interest such as those which were decided in Fidelity-Philadelphia Trust Co. v. Rothensies, supra, and Commissioner v. Estate of Field, 324 U. S. 113. Affirmed. Me. Justice Roberts. I think the judgment should be reversed. The court’s decision repudiates Helvering v. Hallock, 309 U. S. 106, and other cases which have applied its reasoning. We have recently been told that the question whether, within the intent of the Revenue Acts, a transfer is “intended to take effect in possession or enjoyment at or after” the grantor’s death is to be decided not by the terminology of conveyancing or the ancient real property law respecting vested and contingent estates, possibilities of reverter, and the like. We have been warned that the taxpayer and his estate must have regard to substance rather than to form, in answering the question whether the transfer becomes complete only at the transferor’s death. I have assumed that the tax gatherer could not ignore the same test. Here I think the Commissioner is permitted to do just that. In order to reach substance in disregard of form, this court only recently has treated two independent contracts, one for insurance and the other for an annuity, as constituting but a single transaction and amounting to a gift in favor of the beneficiary of the insurance policy. Helvering v. Le Gierse, 312 U. S. 531. The transaction under review in the present case is a common one. Where an applicant for insurance is beyond the age at which a company will underwrite the risk, life insurance may be obtained by purchasing an annuity, which diminishes or eliminates risk of serious loss to" }, { "docid": "8946075", "title": "", "text": "2 percent in one of the two tax years involved. The Third Circuit discussed the necessity of risk shifting and risk distribution for insurance to exist and noted that interdependent agreements must be considered together. The court determined that the undercapitalization of the insurer and the guarantees executed by the parent indicated that risk did not shift. The court viewed Humana as distinguishable on the basis that Humana did not involve an undercapitalized insurer or guarantees executed by the parent company. The court noted that the Tax Court in prior decisions held that risk does not transfer in circumstances where a wholly-owned subsidiary does not insure parties unrelated to the parent company. In the present case, the Tax Court was divided over the effects of unrelated business on risk shifting. The appeals court stated that it need not reach this issue since it was clear that “because of the guarantee to the primary insurers, Gulf and Insco [the subsidiary insurer] did not truly transfer the risk, nor was there a de facto risk distribution to third parties, elements crucial to the allowance of a premium deduction.” 914 F.2d at 412. Subsequent to Gulf the Tax Court established a three-step analysis to determine if insurance existed in cases wherein the subsidiary insurer did business for parties unrelated to the parent and its affiliates. These cases are Sears, Roebuck & Co. v. Commissioner, 96 T.C. 61 (1991), as modified, 96 T.C. 671 (1991); The Harper Group v. Commissioner, 96 T.C. 45 (1991); and AMERCO v. Commissioner, 96 T.C. 18 (1991). The Tax Court analysis, based on Le Gierse, involves “presence of insurance risk,” “risk shifting and risk distributing,” and “commonly accepted notions of insurance.” With respect to “presence of insurance risk” the Tax Court stated the following: Basic to any insurance transaction must be risk. An insured faces some hazard; an insurer accepts a premium and agrees to perform some act if or when the loss event occurs. If no risk exists, then insurance cannot be present. “Insurance risk” is required; investment risk is insufficient. If parties structure an apparent insurance transaction" }, { "docid": "22351874", "title": "", "text": "Congress has identified the characteristic that determines what transactions are entitled to the partial exemption of § 302 (g). We think the fair import of subsection (g) is that the amounts must be received as the result of a transaction which involved an actual “insurance risk” at the time the transaction w;as executed. Historically and commonly insurance involves risk-shifting and risk-distributing. That life insurance is desirable from an economic and social standpoint as a device to shift and distribute risk of loss from premature death is unquestionable. That these elements of risk-shifting and risk-distributing are essential to a life insurance contract is agreed by courts and commentators. See for example: Ritter v. Mutual Life Ins. Co., 169 U. S. 139; In re Walsh, 19 F. Supp. 567; Guaranty Trust Co. v. Commissioner, 16 B. T. A. 314; Ackerman v. Commissioner, 15 B. T. A. 635; Couch, Cyclopedia of Insurance, Vol. I, § 61; Vance, Insurance, §§ 1-3; Cooley, Briefs on Insurance, 2d edition, Yol. I, p. 114; Huebner, Life Insurance, Ch. 1. Accordingly, it is logical to assume that when Congress used the words “receivable as insurance” in § 302 (g), it contemplated amounts received pursuant to a transaction possessing these features. Commissioner v. Keller’s Estate, supra; Helvering v. Tyler, supra; Old Colony Trust Co. v. Commissioner, 102 F. 2d 380; Ackerman v. Commissioner, supra. Analysis of the apparent purpose of the partial exemption granted in § 302 (g) strengthens the assumption that Congress used the word “insurance” in its commonly accepted sense. Implicit in this provision is acknowledgment of the fact that usually insurance payable to specific beneficiaries is designed to shift to a group of individuals the risk of premature death of the one upon whom the beneficiaries are dependent for support. Indeed, the pith of the exemption is particular protection of contracts and their proceeds intended to guard against just such a risk. See Commissioner v. Keller’s Estate, supra; United States Trust Co. v. Sears, 29 F. Supp. 643; Hughes, Federal Death Tax, p. 91; Comment, 38 Mich. L. Rev. 526, 528; compare Chase National Bank v." }, { "docid": "19361938", "title": "", "text": "the contrary. The dissent argued that to hold the insurance contracts between them invalid because they are one “economic family” and what happens to one happens to all of them ignored the separate entities of Humana Inc., its hospital subsidiaries, and Health Care Indemnity. Such a holding violated the time honored rule under Moline Properties that each taxpayer is a separate entity for tax purposes. I. We review de novo the legal standard applied by the tax court in determining whether Humana Inc.’s payments to its captive insurance company, Health Care Indemnity, for itself and on behalf of its subsidiaries constitute ordinary and necessary business expenses for insurance. Rose v. Commissioner, 868 F.2d 851 (6th Cir.1989). The tax court’s findings of fact shall not be overturned unless clearly erroneous. Id. at 853. The Internal Revenue Code § 162(a) (1954) allows a deduction for all ordinary and necessary business expenses paid or incurred during the taxable year in carrying on a trade or business. Insurance premiums in the case of a business are generally deductible business expenses. Treas. Reg. § 1.162-l(a) (1954). Although the term “insurance” is not self-defined by the Internal Revenue Code, the Supreme Court in Helvering v. Le Gierse, 312 U.S. 531, 61 S.Ct. 646, 85 L.Ed. 996 (1941), provided the test for defining “insurance” for federal tax purposes. An insurance contract involves (1) risk shifting and (2) risk distribution. Helvering v. Le Gierse, 312 U.S. 531, 539, 61 S.Ct. 646, 649, 85 L.Ed. 996 (1941) (where an annuity contract completely neutralized the risk inherent in a life insurance contract when both contracts were considered together as one transaction). Risk shifting involves the shifting of an identifiable risk of the insured to the insurer. The focus is on the individual contract between the insured and the insurer. Risk distribution involves shifting to a group of individuals the identified risk of the insured. The focus is broader and looks more to the insurer as to whether the risk insured against can be distributed over a larger group rather than the relationship between the insurer and any single insured. Commissioner" }, { "docid": "3566800", "title": "", "text": "cost of the risk-shifting. Whereas insurance premiums are deductible expenses, amounts entered into self-insurance funds are not. Clougherty Packing Co. v. Comm’r, 811 F.2d 1297, 1300 (9th Cir.1987). As the Supreme Court stated in Le Gierse, both “[historically and commonly insurance involves risk-shifting and risk-distributing.” Le Gierse, 312 U.S. at 539, 61 S.Ct. at 649. Thus, to be permitted to take an insurance deduction, the relationship between the parties must actually result in a shift of risk. Id. at 540-41, 61 S.Ct. at 649-50. Gulf asserts that it meets this standard because it created a separate legal identity in Insco for risk shifting and, in fact, Insco insured the risks of unrelated parties, evidence of risk distributing. (In tax year 1975, 2 percent of Insco’s premium income came from unrelated parties.) The threshhold question we must address is whether Insco’s insurance coverage to Gulf and its affiliates satisfies both the element of risk transfer and that of risk distribution, regardless of whether In-sco insured risks of unrelated parties, if Gulf and its affiliates, both domestic and foreign, are each viewed as separate entities. “Where separate agreements are interdependent, they must be considered together so that their overall economic effect can be assessed.” Clougherty Packing Co., 811 F.2d at 1301. In Moline Properties v. Comm’r, 319 U.S. 436, 439, 63 S.Ct. 1132, 1134, 87 L.Ed. 1499 (1943), the Court held that a corporation must be recognized as a separate taxable entity if that corporation’s purpose is the equivalent of a business activity or is followed by the carrying on of a business. The Court of Appeals for the Sixth Circuit relied on this proposition in Humana Inc. v. Comm’r, 881 F.2d 247, 252 (6th Cir.1989), when it held that fellow subsidiaries of a captive insurer, i.e. in a brother-sister relationship, could properly deduct insurance premium payments to that insurer. In Humana, the Tax Court expressly recognized the legal, financial and economic substance of insurance provided by a wholly owned insurance subsidiary to its brother-sister affiliates. Humana Inc. v. Comm’r, 88 T.C. 197 (1987). Nonetheless, on appeal, the court of appeals suggested" }, { "docid": "19361957", "title": "", "text": "as one “economic unit” and ignore the reality of their separate corporate existence for tax purposes in violation of Moline Properties. Even the tax court explicitly rejected the Commissioner’s economic family argument. Hu-mana, 88 T.C. at 230. The Commissioner has also argued that even if we do not adopt the economic family argument, we should look through the form of the transaction between the Huma-na affiliates and Health Care Indemnity to the substance of the transaction and hold that in substance there was no risk shifting. It would appear that this is just another way of stating that transactions between affiliates for tax purposes shall be disregarded if devoid of business purposes or a sham. We have already discussed in detail this exception to Moline Properties, supra. However, if the Commissioner’s form over substance or “economic reality” argument is an attempt to broaden the “sham” exception or fashion a new exception, we reject the argument. B. Risk Distribution Treating the Humana affiliates and Health Care Indemnity as separate entities and rejecting the economic family argument leads to the conclusion that the first prong of the Le Gierse test for determining “insurance” has been met — there is risk shifting between the Humana affiliates and Health Care Indemnity. However, we must also satisfy the second prong of Le Gierse and find risk distribution. As stated, supra, risk distribution involves shifting to a group of individuals the identified risk of the insured. The focus is broader and looks more to the insurer as to whether the risk insured against can be distributed over a larger group rather than the relationship between the insurer and any single insured. Commissioner of Internal Revenue v. Treganowan, 183 F.2d 288, 291 (2nd Cir.), cert. denied, 340 U.S. 853, 71 S.Ct. 82, 95 L.Ed. 625 (1950). There is little authority adequately discussing what constitutes risk distribution if there is risk shifting. Just recently, the tax court in Gulf Oil v. Commissioner, 89 T.C. 1010, 1035 (1987), noted that insurance must consist of both risk shifting and risk distribution and that the definition of an insurance contract depended" }, { "docid": "6401602", "title": "", "text": "came from related parties except for 2 percent in one of the two tax years involved. The Third Circuit discussed the necessity of risk shifting and risk distribution for insurance to exist and noted that interdependent agreements must be considered together. The court determined that the un-dercapitalization of the insurer and the guarantees executed by the parent indicated that risk did not shift. The court viewed Humana as distinguishable on the basis that Humana did not involve an un-dercapitalized insurer or guarantees executed by the parent company. The court noted that the Tax Court in prior decisions held that risk does not transfer in circumstances where a wholly- owned subsidiary does not insure parties unrelated to the parent company. In the present case, the Tax Court was divided over the effects of unrelated business on risk shifting. The appeals court stated that it need not reach this issue since it was clear that “because of the guarantee to the primary insurers, Gulf and Insco [the subsidiary insurer] did not truly transfer the risk, nor was there a de facto risk distribution to third parties, elements crucial to the allowance of a premium deduction.” 914 F.2d at 412. Subsequent to Gulf the Tax Court established a three-step analysis to determine if insurance existed in cases wherein the subsidiary insurer did business for parties unrelated to the parent and its affiliates. These cases are Sears, Roebuck & Co. v. Commissioner, 96 T.C. 61, 1991 WL 4979 (1991), as modified, 96 T.C. 671, 1991 WL 61250 (1991); The Harper Group v. Commissioner, 96 T.C. 45, 1991 WL 4980 (1991); and AMERCO v. Commissioner, 96 T.C. 18, 1991 WL 4981 (1991). The Tax Court analysis, based on Le Gierse, involves “presence of insurance risk,” “risk shifting and risk distributing,” and “commonly accepted notions of insurance.” With respect to “presence of insurance risk” the Tax Court stated the following: Basic to any insurance transaction must be risk. An insured faces some hazard; an insurer accepts a premium and agrees to perform some act if or when the loss event occurs. If no risk exists, then" }, { "docid": "19361939", "title": "", "text": "expenses. Treas. Reg. § 1.162-l(a) (1954). Although the term “insurance” is not self-defined by the Internal Revenue Code, the Supreme Court in Helvering v. Le Gierse, 312 U.S. 531, 61 S.Ct. 646, 85 L.Ed. 996 (1941), provided the test for defining “insurance” for federal tax purposes. An insurance contract involves (1) risk shifting and (2) risk distribution. Helvering v. Le Gierse, 312 U.S. 531, 539, 61 S.Ct. 646, 649, 85 L.Ed. 996 (1941) (where an annuity contract completely neutralized the risk inherent in a life insurance contract when both contracts were considered together as one transaction). Risk shifting involves the shifting of an identifiable risk of the insured to the insurer. The focus is on the individual contract between the insured and the insurer. Risk distribution involves shifting to a group of individuals the identified risk of the insured. The focus is broader and looks more to the insurer as to whether the risk insured against can be distributed over a larger group rather than the relationship between the insurer and any single insured. Commissioner of Internal Revenue v. Treganowan, 183 F.2d 288, 291 (2nd Cir.), cert. denied, 340 U.S. 853, 71 S.Ct. 82, 95 L.Ed. 625 (1950). We believe that the tax court correctly held on the first issue, the parent-subsidiary issue, that under the principles of Clougherty and Carnation the premiums paid by Humana Inc., the parent to Health Care Indemnity, its wholly owned subsidiary, did not constitute insurance premiums and, therefore, were not deductible. Humana Inc. did not shift the risk to Health Care Indemnity. As the Tenth Circuit stated in Stearns-Roger: The comparison of the arrangement here made to self-insurance cannot be ignored. The parent provided the necessary funds to the subsidiary by way of what it called “premiums” to meet the casualty losses of the parent. The subsidiary retained these funds until paid back to the parent on losses.... In the case before us we must again consider economic reality. The sums were with the subsidiary for future use and would be included in the Stearns-Roger balance sheet. Again the risk of loss did not" }, { "docid": "11315878", "title": "", "text": "Act, as amended, and not exempt? II. Whether the value at decedent’s death of the sixteen joint and survivor annuity contracts was required to be included in the decedent’s gross estate as transfers “in contemplation of or intended to take effect in possession or enjoyment at or after” the donor’s death, or were the rights of the second annuitants simply gifts inter vivos ? The statutes necessary to intelligent consideration of the problems involved are set forth in a marginal note. Respecting the first question, the Commissioner contends, “The combined effect of the simultaneous issuance of the single-premium life insurance policies and annuity contracts was to eliminate the risk inherent in life insurance, thus precluding exclusion of the funds as insurance.” No argument is made, but attention is drawn to what is termed an “identical issue” confronting the Supreme Court at the time of filing of the Commissioner’s brief here. The respondent concurred in this suggestion. The Supreme Court handed down its opinion in Helvering v. LeGierse, 312 U.S. 531, 61 S.Ct. 646, 649, 85 L.Ed. 996, on March 3, 1941, deciding the question adversely to the taxpayer. There, as here, an “insurance” policy was issued to the decedent, on the decedent’s life, contemporaneously with an annuity contract; the insured was of an advanced age and no physical examination was required; the “insurance” policy was of the single premium type, as was the-annuity contract; the “insurance” policy would not have been issued without the contemporaneous issuance of an annuity contract. The Supreme Court said: “We think the fair import of subsection (g) is that the amounts must be received as the result of a transaction which involved an actual ‘insurance risk’ at the time the transaction was executed. Historically and commonly insurance involves risk-shifting and risk-distributing. * * * That these elements of risk-shifting and risk-distributing are essential to a life insurance contract is agreed by courts and commentators. [Citations.] Accordingly, it is logical to assume that when Congress used the words ‘receivable as insurance’ in § 302(g), it contemplated amounts received pursuant to a transaction possessing these features. [Cases" }, { "docid": "8946061", "title": "", "text": "and its subsidiaries, the IRS examined the workpapers used to prepare the tax returns and scrutinized thoroughly inter-company dealings. Mr. Dwyer reviewed the assessments made by the IRS for tax years 1974 and 1975 and determined that the amounts assessed for disallowance of a business expense and for premiums earned on property located in the United States were complete and accurate representations of what the IRS purported them to be—that is, he agreed that the amounts assessed for disallowance were the premiums received by Mentor from plaintiff and its consolidated United States subsidiaries and that the amounts assessed for premiums earned on United States risks were the premiums earned from drilling rigs operating over the Outer Continental Shelf of the Gulf of Mexico that had not been included as income by plaintiff. DISCUSSION I. Risk shifting and risk distributing The first issue to be addressed is whether payments by plaintiff to its subsidiary insurer constitute insurance, thus qualifying as a business deduction for federal income tax purposes. I.R.C. § 162(a) allows as a deduction from taxable income “all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business.” Insurance premiums are considered an ordinary and necessary business expense. Treas.Reg. § 1.162-l(a) (1973). Over the last ten years, several courts have addressed the issue of whether premiums paid by a parent company to a subsidiary insurer constitute insurance. These courts based their findings on this issue on the Supreme Court’s definition of insurance in Helvering v. Le Gierse, 312 U.S. 531, 61 S.Ct. 646, 85 L.Ed. 996 (1941). In Le Gierse the Supreme Court stated that “insurance involves risk-shifting and risk-distributing____” 312 U.S. at 539, 61 S.Ct. at 649. The Court in Le Gierse did not provide definitions for risk-shifting and risk-distributing, and consequently lower courts differ on their interpretations of these terms. 1. Courts also have differed on the significance of treating the parent company and the subsidiary insurer as separate entities on the question of whether payments to a subsidiary insurer constitute insurance. Under Moline Properties, Inc. v. Commissioner, 319" }, { "docid": "6401604", "title": "", "text": "insurance cannot be present. “Insurance risk” is required; investment risk is insufficient. If parties structure an apparent insurance transaction so as to effectively eliminate the effect of insurance risk therein, insurance cannot be present. AMERCO, 96 T.C. at 38-39. With respect to “risk shifting and risk distributing,” the Tax Court stated that while Le Gierse established that insurance requires risk shifting and risk distributing, Le Gierse did not define these terms. The Tax Court relied on the Tenth Circuit’s decision in Beech Aircraft for the following definition: “ ‘Risk-shifting’ means one party shifts his risk of loss to another, and ‘risk-distributing’ means that the party assuming the risk distributes his potential liability, in part, among others.” Harper, 96 T.C. at 58-59, and AMERCO, 96 T.C. at 40 (quoting Beech Aircraft, 797 F.2d at 922). With respect to the third requirement of “commonly accepted notions of insurance,” the Tax Court did not discuss how to apply the requirement. The court dealt with this requirement by applying the facts of each case to determine if insurance existed in a commonly understood manner. Sears involved a wholly-owned subsidiary insurer of Sears, Roebuck and Co. (“Sears”). The subsidiary insurer, Allstate Insurance Company (“Allstate”), was licensed in 40 states. While the subsidiary insured 10-15 percent of the parent company’s risk, the premiums received from this business only amounted to 0.25 percent of the premiums earned by the subsidiary insurer for the years in issue. The other 99.75 percent of the subsidiary’s premiums were received from policyholders unrelated to the parent. The Tax Court, employing its three-step analysis, concluded that payments by Sears to the subsidiary constituted insurance. The court found that the claims involved— claims relating to injuries to persons on the parent’s premises or by the parent’s vehicles — established the presence of insurance risk. Risk shifting existed in both form and substance: in form because insurance contracts were written; premiums were transferred; losses were paid; and the subsidiary insurer was a separate, viable entity financially capable of meeting its obligations — in substance because the insurer’s business relationship with its parent was the" }, { "docid": "22351875", "title": "", "text": "logical to assume that when Congress used the words “receivable as insurance” in § 302 (g), it contemplated amounts received pursuant to a transaction possessing these features. Commissioner v. Keller’s Estate, supra; Helvering v. Tyler, supra; Old Colony Trust Co. v. Commissioner, 102 F. 2d 380; Ackerman v. Commissioner, supra. Analysis of the apparent purpose of the partial exemption granted in § 302 (g) strengthens the assumption that Congress used the word “insurance” in its commonly accepted sense. Implicit in this provision is acknowledgment of the fact that usually insurance payable to specific beneficiaries is designed to shift to a group of individuals the risk of premature death of the one upon whom the beneficiaries are dependent for support. Indeed, the pith of the exemption is particular protection of contracts and their proceeds intended to guard against just such a risk. See Commissioner v. Keller’s Estate, supra; United States Trust Co. v. Sears, 29 F. Supp. 643; Hughes, Federal Death Tax, p. 91; Comment, 38 Mich. L. Rev. 526, 528; compare Chase National Bank v. United States, 28 F. Supp. 947; In re Walsh, supra; Moskowitz v. Davis, 68 F. 2d 818. Hence, the next question is whether the transaction in suit in fact involved an “insurance risk” as outlined above. We cannot find such an insurance risk in the contracts between decedent and the insurance company. The two contracts must be considered together. To say they are distinct transactions is to ignore actuality, for it is conceded on all sides and was found as a fact by the Board of Tax Appeals that the “insurance” policy would not have been issued without the annuity contract. Failure, even studious failure, in one contract to refer to the other cannot be controlling. Moreover, authority for such consideration is not wanting, however unrealistic the distinction between form and substance may be. Commissioner v. Keller’s Estate, supra; Helvering v. Tyler, supra. See Williston, Contracts, Vol. III, § 628; Paul, Studies in Federal Taxation, 2d series, p. 218; compare Pearson v. McGraw, 308 U. S. 313. Considered together, the contracts wholly fail to spell" }, { "docid": "11315879", "title": "", "text": "L.Ed. 996, on March 3, 1941, deciding the question adversely to the taxpayer. There, as here, an “insurance” policy was issued to the decedent, on the decedent’s life, contemporaneously with an annuity contract; the insured was of an advanced age and no physical examination was required; the “insurance” policy was of the single premium type, as was the-annuity contract; the “insurance” policy would not have been issued without the contemporaneous issuance of an annuity contract. The Supreme Court said: “We think the fair import of subsection (g) is that the amounts must be received as the result of a transaction which involved an actual ‘insurance risk’ at the time the transaction was executed. Historically and commonly insurance involves risk-shifting and risk-distributing. * * * That these elements of risk-shifting and risk-distributing are essential to a life insurance contract is agreed by courts and commentators. [Citations.] Accordingly, it is logical to assume that when Congress used the words ‘receivable as insurance’ in § 302(g), it contemplated amounts received pursuant to a transaction possessing these features. [Cases cited.] ***** \"The two contracts must be considered together. To say they are distinct transactions is to ignore actuality, for it is conceded on all sides and was found as a fact by the Board of Tax Appeals that the ‘insurance’ policy would not have been issued without the annuity contract. * * * “Considered together, the contracts wholly fail to spell out any element of insurance risk. * * *” The Supreme Court then held the proceeds were taxable under § 302(c), “as a transfer to take effect in possession or enjoyment at or after death.” Accordingly, so far as the first question is concerned, the decision of the Board of Tax Appeals is reversed. See, also, Keller’s Estate v. Commissioner, 312 U.S. 543, 61 S.Ct. 651, 85 L.Ed. 1032, affirming 3 Cir., 113 F.2d 833. On the second question, the Commissioner argues, “The value at the decedent’s death of the joint and survivor annuity contracts should be included in the gross estate of the decedent.” He urges “that these simultaneous transactions constituted in" }, { "docid": "4870996", "title": "", "text": "312 U.S. at 539. The Supreme Court described as “the fair import” of the statute “that the amounts must be received as the result of a transaction which involved an actual ‘insurance risk’ at the time the transaction was executed. Historically and commonly insurance involves risk-shifting and risk-distributing.” 312 U.S. at 539. The Court continued: “Analysis of the apparent purpose of the partial exemption granted in * * * [the statute] strengthens the assumption that Congress used the word ‘insurance’ in its commonly accepted sense.” 312 U.S. at 540. The Supreme Court then concluded that the two Contracts, when considered together, did not create a transfer of the risk of premature death, because: Here the total consideration was prepaid and exceeded the face value of the “insurance” policy. The excess financed loading and other incidental charges. Any risk that the prepayment would earn less than the amount paid to * * * [Le Gierse] as an annuity was an investment risk similar to the risk assumed by a bank; it was not an insurance risk as explained above. * * * [312 U.S. at 542.] Factually the Court found that “annuity and insurance are opposites; in this combination the one neutralizes the risk customarily apparent in the other. From the company’s viewpoint, insurance looks to longevity, annuity to transiency.” 312 U.S. at 541. The “characteristic” set out in Le Gierse, to wit, the shifting and distributing of insurance risks, has become the keynote of positions of the parties and opinions of various courts. Respondent has successfully argued in other cases that, as a result of contractual arrangements or the ownership interest of the “insured” in the “insurer,” risk shifting has not occurred. Petitioner argues that this case is different, relying primarily on the view expressed by this Court in Gulf Oil Corp. v. Commissioner, 89 T.C. 1010, 1027 (1987), affd. in part, revd. in part, and remanded (without reaching this issue) 914 F.2d 396 (3d Cir. 1990). In Gulf, the majority of this Court expressly rejected respondent’s approach and indicated that in circumstances such as those presented here, i.e., where" }, { "docid": "22351873", "title": "", "text": "Stat. 1057, 1098. It has never been changed. None of the acts has ever defined “insurance.” Treasury Regulations, interpreting the original provision, stated simply: “The term 'insurance’ refers to life insurance of every description, including death benefits paid by fraternal beneficial societies, operating under the lodge system.” Treasury Regulations No. 37, 1921 edition, p. 23. This statement has never been amplified. The committee report accompanying the Revenue Act of 1918 merely noted that the provision taxing insurance receivable by the executor clarified existing law, and that the provision taxing insurance in excess of $40,000 receivable by specific beneficiaries was inserted to prevent tax evasion. House Report No. 767, 65th Cong., 2d Sess., p. 22. Sub sequent committee reports do not mention § 302 (g). Transcripts of committee hearings in 1918 and since are equally uninformative. Necessarily, then, the language and the apparent purpose of § 302 (g) are virtually the only bases for determining what Congress intended to bring within the scope of the phrase “receivable as insurance.” In fact, in using the term “insurance” Congress has identified the characteristic that determines what transactions are entitled to the partial exemption of § 302 (g). We think the fair import of subsection (g) is that the amounts must be received as the result of a transaction which involved an actual “insurance risk” at the time the transaction w;as executed. Historically and commonly insurance involves risk-shifting and risk-distributing. That life insurance is desirable from an economic and social standpoint as a device to shift and distribute risk of loss from premature death is unquestionable. That these elements of risk-shifting and risk-distributing are essential to a life insurance contract is agreed by courts and commentators. See for example: Ritter v. Mutual Life Ins. Co., 169 U. S. 139; In re Walsh, 19 F. Supp. 567; Guaranty Trust Co. v. Commissioner, 16 B. T. A. 314; Ackerman v. Commissioner, 15 B. T. A. 635; Couch, Cyclopedia of Insurance, Vol. I, § 61; Vance, Insurance, §§ 1-3; Cooley, Briefs on Insurance, 2d edition, Yol. I, p. 114; Huebner, Life Insurance, Ch. 1. Accordingly, it is" }, { "docid": "6401603", "title": "", "text": "there a de facto risk distribution to third parties, elements crucial to the allowance of a premium deduction.” 914 F.2d at 412. Subsequent to Gulf the Tax Court established a three-step analysis to determine if insurance existed in cases wherein the subsidiary insurer did business for parties unrelated to the parent and its affiliates. These cases are Sears, Roebuck & Co. v. Commissioner, 96 T.C. 61, 1991 WL 4979 (1991), as modified, 96 T.C. 671, 1991 WL 61250 (1991); The Harper Group v. Commissioner, 96 T.C. 45, 1991 WL 4980 (1991); and AMERCO v. Commissioner, 96 T.C. 18, 1991 WL 4981 (1991). The Tax Court analysis, based on Le Gierse, involves “presence of insurance risk,” “risk shifting and risk distributing,” and “commonly accepted notions of insurance.” With respect to “presence of insurance risk” the Tax Court stated the following: Basic to any insurance transaction must be risk. An insured faces some hazard; an insurer accepts a premium and agrees to perform some act if or when the loss event occurs. If no risk exists, then insurance cannot be present. “Insurance risk” is required; investment risk is insufficient. If parties structure an apparent insurance transaction so as to effectively eliminate the effect of insurance risk therein, insurance cannot be present. AMERCO, 96 T.C. at 38-39. With respect to “risk shifting and risk distributing,” the Tax Court stated that while Le Gierse established that insurance requires risk shifting and risk distributing, Le Gierse did not define these terms. The Tax Court relied on the Tenth Circuit’s decision in Beech Aircraft for the following definition: “ ‘Risk-shifting’ means one party shifts his risk of loss to another, and ‘risk-distributing’ means that the party assuming the risk distributes his potential liability, in part, among others.” Harper, 96 T.C. at 58-59, and AMERCO, 96 T.C. at 40 (quoting Beech Aircraft, 797 F.2d at 922). With respect to the third requirement of “commonly accepted notions of insurance,” the Tax Court did not discuss how to apply the requirement. The court dealt with this requirement by applying the facts of each case to determine if insurance existed" }, { "docid": "3566799", "title": "", "text": "on a “substance over form” analysis that ignores the separate existence of Gulf and its affiliates, including Insco. The Tax Court rejected the Commissioner’s position and found that insurance premiums paid by the foreign affiliates could not be considered constructive dividends under the test in Sammons v. Comm’r, 472 F.2d 449 (5th Cir.1972), since those payments were for the affiliates’ benefit, i.e., providing risk coverage, rather than for a shareholder purpose. In addition, the claims paid by Insco to Gulf and its domestic affiliates were not constructive dividends since the claims were paid in consideration for the premiums paid. The Commissioner appeals, contending that, under Helvering v. Le Gierse, 312 U.S. 531, 61 S.Ct. 646, 85 L.Ed. 996 (1941), the transaction at issue does not constitute “insurance” for federal tax purposes and must be considered as constructive dividends to Gulf. B. Deductibility of Insurance Premiums Paid to Insurance Subsidiary Under I.R.C. § 162(a), insurance premiums are deductible as ordinary and necessary business expenses. The premium is the means by which two unrelated parties measure the cost of the risk-shifting. Whereas insurance premiums are deductible expenses, amounts entered into self-insurance funds are not. Clougherty Packing Co. v. Comm’r, 811 F.2d 1297, 1300 (9th Cir.1987). As the Supreme Court stated in Le Gierse, both “[historically and commonly insurance involves risk-shifting and risk-distributing.” Le Gierse, 312 U.S. at 539, 61 S.Ct. at 649. Thus, to be permitted to take an insurance deduction, the relationship between the parties must actually result in a shift of risk. Id. at 540-41, 61 S.Ct. at 649-50. Gulf asserts that it meets this standard because it created a separate legal identity in Insco for risk shifting and, in fact, Insco insured the risks of unrelated parties, evidence of risk distributing. (In tax year 1975, 2 percent of Insco’s premium income came from unrelated parties.) The threshhold question we must address is whether Insco’s insurance coverage to Gulf and its affiliates satisfies both the element of risk transfer and that of risk distribution, regardless of whether In-sco insured risks of unrelated parties, if Gulf and its affiliates, both domestic" }, { "docid": "4870995", "title": "", "text": "of a reformulated Tax Court position to the facts of this case. Initially, however, we describe the case that; is the foundation of all of these positions, Helvering v. Le Gierse, 312 U.S. 531 (1941). In Le Gierse, a decedent had purchased an annuity contract and a single premium life insurance policy from an insurance company. The policy would not have been issued without the annuity contract, but in all formal respects the applications and the contracts were treated as distinct transactions. Upon the decedent’s death, the face value of the policy became payable to Le Gierse, the beneficiary. The estate claimed that the proceeds of the policy were excludable for Federal estate tax purposes as insurance proceeds. The issue before the Court was whether the proceeds were amounts “receivable as insurance” within the meaning of the statutory exclusion. The Supreme Court considered the language and the apparent purpose of the statute and concluded that “in using the term ‘insurance’ Congress has identified the characteristic that determines what transactions are entitled to the partial exemption.” 312 U.S. at 539. The Supreme Court described as “the fair import” of the statute “that the amounts must be received as the result of a transaction which involved an actual ‘insurance risk’ at the time the transaction was executed. Historically and commonly insurance involves risk-shifting and risk-distributing.” 312 U.S. at 539. The Court continued: “Analysis of the apparent purpose of the partial exemption granted in * * * [the statute] strengthens the assumption that Congress used the word ‘insurance’ in its commonly accepted sense.” 312 U.S. at 540. The Supreme Court then concluded that the two Contracts, when considered together, did not create a transfer of the risk of premature death, because: Here the total consideration was prepaid and exceeded the face value of the “insurance” policy. The excess financed loading and other incidental charges. Any risk that the prepayment would earn less than the amount paid to * * * [Le Gierse] as an annuity was an investment risk similar to the risk assumed by a bank; it was not an insurance risk" }, { "docid": "4871007", "title": "", "text": "Appeals for the Seventh Circuit, which has not spoken on the precise issues before us. Thus we apply the law as we, as a national court, see it. See Golsen v. Commissioner, 54 T.C. 742, 756-757 (1970), affd. 445 F.2d 985 (10th Cir. 1971); Lawrence v. Commissioner, 27 T.C. 713 (1957). Although framed in terms of the “risk shifting” and “risk distribution” terminology of Helvering v. Le Gierse, 312 U.S. 531 (1941), the Tax Court’s position has been to consider all of the facts and circumstances to determine whether a transaction nominally labeled “insurance” should be recharacterized as “self-insurance” or as some other arrangement negating the transfer of risk. At the same time, however, we have consistently rejected respondent’s “economic family” theory. In the first of our cases, Carnation Co. v. Commissioner, 71 T.C. 400 (1978), affd. 640 F.2d 1010 (9th Cir. 1981), the taxpayer-corporation insured its risks with gin unrelated company, which, in turn, reinsured 90 percent of those risks with the taxpayer’s wholly owned subsidiary. Before agreeing to the arrangement, the unrelated insurer required the taxpayer to increase the subsidiary’s capital to $3 million, if necessary, for the subsidiary to meet its reinsurance obliga tions. We determined that the arrangement was not insurance and that premiums paid to the third-party insurer that were ceded to the subsidiary were not deductible. The Court of Appeals for the Ninth Circuit affirmed our decision, agreeing that, as in Le Gierse, the agreements effectively neutralized risk. The holding of Carnation is an extension of the general rule that reserves set aside to cover a future contingency are not currently deductible, although the losses for which the reserves are created are deductible when actually paid. See Anesthesia Service Medical Group v. Commissioner, 85 T.C. 1031, 1045-1046 (1985), affd. 825 F.2d 241 (9th Cir. 1987). Thus our cases have denied deductions for “insurance premiums” in situations where the effect of an arrangement was the establishment of a self-insurance reserve. As indicated in the above quotation from Bituminous Casualty Corp. v. Commissioner, 57 T.C. 58, 77-78 (1971), an exception to the general rule exists only" } ]

[ { "docid": "11932262", "title": "", "text": "are too conjectural.” In O’Connor a deduction for estimated Federal income taxes made by a judge in a non-jury case was definitely approved. McWeeney was a jury case in which the issue was raised by the refusal of the trial court to give two requests, one, that no sum was to be added to any verdict because of income taxes and the other, that loss of earnings must be calculated on the basis of net income after taxes. A reading of the majority opinion in Mc-Weeney reveals rather clearly a belief that the increased salary base because of failure to submit net earnings to the jury was considered as an offset to the inroads of inflation and counsel fees. This surmise is supported by the majority’s own construction of McWeeney which they say was decided “in part on the fact that plaintiff’s judgment in a case like this is usually less than compensatory because of inflation and attorney’s fees * * Montellier was a non-jury ease. Although this court did not hold failure to deduct income taxes from gross to be error, it did say, “It would not have been erroneous, under the rule of McWeeney * * * for the trial judge to have made a deduction for income taxes, which would have amounted to a substantial sum in this case” (315 F.2d p. 186). The trial judge here was charged with the duty of making a fair award for the pecuniary losses sustained. He has carefully computed such a figure. It is indeed a legal anomaly to say that the plaintiff must receive in addition an amount equivalent to the Federal and State income taxes in which the decedent never would have had a pecuniary interest. The courts are frequently accused of being oblivious to the facts of life. In their ivory towers they are said to be unaware of the realities. Yet since virtually every case to be decided deals with some phase of human existence, the ju diciary should endeavor to be most conversant with the practical aspects of the problems submitted. Earl Jowitt expressed this" } ]

[ { "docid": "15901651", "title": "", "text": "show to a trial judge’s first hand experience with the evidence and the due regard to be given his opportunity to judge the credibility of the witnesses may be referred to as discretion, but it should not be confused with his discretion in dealing with motions for new trials following jury verdicts. B. The Role of Income Taxes In arriving at a measure of damages the district judge deducted some federal and Arizona income taxes that he estimated the decedents would have paid on their projected incomes. The plaintiffs cite this as reversible error. They argue both that Arizona law must be applied and does not permit such a deduction and that, even if Arizona law is not followed, the better rule of law is that taxes should not be considered in calculating damages. This is an issue on which there has been much discussion and little agreement. We recently had occasion to clarify our views on the matter in Burlington Northern, Inc. v. Boxberger, 529 F.2d 284 (9th Cir. 1975). Upon a thorough analysis and synthesis of the cases and commentaries, we found that most of the commentators who had carefully analyzed the issues favored consideration of the effect of income taxes. We firmly supported this rule, concluding that, as a matter of fairness and logic, the just approach would require a rule providing for the admissibility of evidence of, and corresponding deduction to account for, future income taxes in all cases. (Emphasis in original) 529 F.2d at 294. On the facts of that case, and after due consideration of the leading case, McWeeney v. New York, N.H. & H. R.R. Co., 282 F.2d 34 (2d Cir.) (en banc), cert. denied, 364 U.S. 870, 81 S.Ct. 115, 5 L.Ed.2d 93 (1960), we held that in cases wherein the gross earnings in question are beyond “the lower or middle reach of the income scale,” and consequently “the impact of income tax has a significant and substantial effect in the computation of probable future contributions” to the beneficiaries, both parties should be permitted to introduce evidence of the extent to which" }, { "docid": "3922408", "title": "", "text": "course, contributory negligence is not available as a defense in an action brought under the Safety Appliance Act. . The verdict was returned May 12, 1971. . MclVeeney was preceded in the Second Circuit by Stokes v. United States, 2 Cir. 1944, 144 F.2d 82, 87, where the Court held in an appeal from a non-jury trial under the Suits in Admiralty Act that it was not error for the trial court to refuse to make deductions for future income taxes in computing expected earnings: “[s]uch deductions are too conjectural”. For subsequent refinements of the Mc-Weeney rule, no more than peripherally pertinent to our problem here, see among other Second Circuit cases, the following : Montellier v. United States, 2 Cir. 1963, 315 F.2d 180, holding in a federal tort claim case that it was not error for the trial judge to compute loss for future earnings by ignoring impact of income taxes on a projected annual income of $11,150.00, but indicating that this figure was close to being large enough to fall into the McWeeney exception; Cunningham v. Rederiet Vendeggen A/S and M/S Trolleggen, 2 Cir. 1964, 333 F.2d 308, expanding the rule to non-jury trials; LeRoy v. Sabeena Belgian World Airlines, 2 Cir. 1965, 344 F.2d 266, holding that anticipated immediate future income of $16,000, reaching $25,000 for nine years brought that case within the MeWeeney exception, and that it was not error for the trial court (non-jury) in its computations to make deductions for future income taxes ;• and Petition of Marina Mercante Nicaragüense, S.A., 2 Cir. 1966, 364 F.2d 118, reiterating McWeeney’s application to non-jury trials. . See Greco v. Seaboard Coast Line R.R. Co., 5 Cir. 1972, 464 F.2d 496 and cases there cited, including Prudential Insurance Company of America v. Wilkerson, text infra, for our latest treatment of the allied question of the propriety of an instruction as to jury awards being nontaxable. . Several of our sister courts of appeals liave arrived at a similar conclusion. See, e. g., Boston and Maine R.R. v. Talbert, 1 Cir. 1966, 360 F.2d 286; Domeracki v." }, { "docid": "11932232", "title": "", "text": "court was not clearly in error in refusing to be persuaded by it. We now come to a consideration •of libelant’s contention that the trial ■court erred in computing decedent’s future lost earnings on the basis of net income after taxes. The court, after ■estimating decedent’s projected income for each of the remaining years of his work expectancy, deducted from the in■come figure for each year a sum for federal and state income taxes computed .at current withholding rates. The resulting figures were then used to compute the lump sum due libelant as compensation for the loss of her share of decedent’s future income, the court also crediting libelant with the anticipated future income tax on the portion of the award that was discounted for present enjoyment. We agree with libelant that the trial court erred in adjusting her award .so as to take into account future income taxes so estimated. Our decision here would be simple indeed if the courts of New York had as yet ruled on whether to use a decedent's gross or net income when computing the damages resulting from a wrongful death, for, as the court below ■correctly noted, when an admiralty court adopts a state’s right of action for wrongful death, the court is obliged to enforce that right subject to whatever ■conditions and limitations the state has attached to it. The Tungus v. Skovgaard, supra, 358 U.S. at 592, 79 S.Ct. at 506. As we are unable to find any New York decision ruling on whether gross or net income is to be used in damage computations under New York’s Wrongful Death Act, we are constrained to follow our own court’s dictum in McWeeney v. New York, N. H. & H. R. R., 282 F.2d 34, 39 (2 Cir.), cert. denied, 364 U.S. 870, 81 S.Ct. 115, 5 L.Ed.2d 93 (1960), later recognized in this court’s holding in Montellier v. United States, 315 F.2d 180 (2 Cir. 1963), which indicates that a federal court should use the gross income measure where applicable state law is silent as to any standard to use. Respondent" }, { "docid": "22572151", "title": "", "text": "a total disability case — future normal earning power, expectancy, and discount factor. The third is charged by the court, often accompanied, as it was here, by a rule of thumb formula to simplify the jury’s task. Expectancy is usually determined by life tables and again is normally charged by the court, although a more refined analysis would permit reduction of the figures in the tables to take account of “the probable duration of plaintiff’s earning capacity” (presumably with due regard to pension rights thereafter), 2 Harper & James, The Law of Torts, § 25.8, at 1317 and fn. 6 (1956), and other authorities cited in Conte v. Flota Mercante del Estado, 2 Cir., 1960, 277 F.2d 664, 670, and also of conditions unconnected with the accident that might have reduced plaintiff’s expectancy below the normal term. American Law Institute, Restatement of Torts, § 924, Comment e. This leaves future earning power. As to that, of course, there are great imponderables, since existing compensation is only one element in the scale. But, whatever difficulties may inhere in this element of the formula, they do not justify the addition of other much more serious ones in the ordinary case. The instruction here requested and refused illustrates the delusive simplicity with which the subject has been invested. Defendant wished the jury to be told merely that “If your verdict is in favor of plaintiff, you must calculate any past or future loss of earnings on the basis of his net income after deduction of income taxes.” All of us agree the jury needs more guidance than that. But what is the alternative? The trial court could begin by instructing that under the optional tax provided in § 3 of the Internal Revenue Code, which McWeeney was entitled to elect, the tax on a bachelor’s income of $4,800 would have been $773. This is still simple enough but the jury must determine not what Mc-Weeney’s tax on $4,800 now is but what it would be over his expectancy. In these lower brackets the amount of the tax and its percentage relation to earnings" }, { "docid": "11932236", "title": "", "text": "decedent’s future earnings which would have been withheld for taxes. Rather, the crucial issue is whether a court can predict with sufficient certitude just what portion of decedent’s earnings would have been placed beyond libelant’s reach by future tax laws so as to permit the court justly to reduce the damage award which libelant would otherwise be entitled to. We think that the resolution of this issue in the McWeeney case, supra, based in part on an earlier decision of our court in Stokes v. United States, 144 F.2d 82 (2 Cir. 1944), requires us to rule that because of the-speculative nature of any deduction for future income taxes the court below should have calculated libelant’s damage-award on the basis of her husband’s-future gross income before taxes. Nor are we persuaded by respondent’s efforts to distinguish the Mc-Weeney case on the ground that we were-there concerned with the propriety of' refusing to instruct a jury to use a net income figure in computing damages, while in this ease the damages were-computed by a court sitting without a. jury. While McWeeney did indeed deal with the difficulty a jury would have in. applying an instruction framed in terms-of net income after taxes, the important-factors cited as causing difficulty there-would appear to apply with almost equal force to a court sitting without a jury. Thus, the court in McWeeney pointed to the impossibility of predicting the-number of future exemptions a taxpayer-might become entitled to as well as the-effective dates of such exemptions. Can it be seriously argued that a trial judge-is for some reason more adept at making-such predictions than a jury ? Moreover,, the McWeeney decision was based in-part on the fact that plaintiff’s judgment, in a case like this is usually less than-compensatory because of inflation and' attorney fees, elements that are certainly unaffected by whether a court or a. jury sits as the trier of fact. Finally,, the way this court in McWeeney related' its decision there to prior case law is-a further indication that McWeeney cannot be legitimately distinguished on the-ground that it dealt with jury instructions. The" }, { "docid": "11932258", "title": "", "text": "can instruct himself that the damage award is not subject to incbme tax. His problem is thus limited to the method used to compute the award. Both the New York statute and logic (and I submit, by proper interpretation, our own cases) compel the conclusion that in his search for proper compensation for the pecuniary injuries sustained the court should ascertain the amount of which the family is being deprived. After all, the purpose of the judge is to mete out a fair award and, in so doing, judges should not be altogether unmindful of the realities of life. The customary proof submitted in negligence actions for the purpose of determining lost earnings, apart from pain and suffering and other special items consists of average salary or income for a period of years before injury or death. This figure is then multiplied by such factor as is applicable, obtained from life expectancy and/or work expectancy tables. The trial court here believing that “The recent trend in decisions favors the deduction of income taxes” based his computation upon decedent’s net income. In so doing, the court relied primarily upon our O’Connor decision but as to trend referred to Floyd v. Fruit Industries, 144 Conn. 659, 136 A.2d 918, 63 A.L.R.2d 1378 (1957) and British Transport Com. v. Gourley [1956], A.C. 185, 2 W.L.R. 41 [1955]. The majority here concedes that they are unable to find any New York decision bearing upon the use of gross or net income in calculating damages. Parenthetically, I cannot understand why absence of case law should be considered a deterrent to the application of New York’s clear “pecuniary injuries” statute. Turning from strength to weakness, they are “constrained” to follow “dictum” in McWeeney, which they say somehow was buttressed by Montellier v. United States, 315 F.2d 180, 2 Cir., 1963. These slender reeds will not support the weight they would impose upon them. Indirectly recognizing this weakness, the majority create a wholly irrelevant “crucial” issue, namely, “whether a court can predict with sufficient certitude just what portion of decedent’s earnings would have been placed beyond libelant’s" }, { "docid": "15901667", "title": "", "text": "affirmed FTCA awards based on Arizona law although the trial court had not deducted projected income taxes. However, in McCauley, the punitive damages issue apparently was not raised. Moreover, the court stated that no compelling reasons had been cited for adopting a fixed rule that would restrict the trial court’s evaluation of what damages would be reasonable. In Becker the lost income was $15,000 per year — much lower than the incomes which concern us here. The review of cases in Boxberger, supra, 529 F.2d at 290, indicates that this $15,000 income would fall near the top of the McWeeney “lower or middle reach of the income scale,” 282 F.2d at 39, where income taxes are not taken into account. Furthermore, in both of these cases we avoided establishing a hard and fast rule that income taxes could not be deducted. In McCauley we said: We assume that in the case at bar the experienced trial judge was able to evaluate, as required by Arizona law, the whole of the evidence and reach a reasonable decision. 470 F.2d at 139. In Becker we stressed that the fixing of “fair and just” damages was primarily for the trier of fact under Arizona law. 378 F.2d at 324. In both cases the facts and circumstances made the issue of income tax a close enough question that we felt it proper to defer to the discretion of the trial court. The situation we face today is far different and compels a different result. C. Modification of the Judgment 1. Authority We now turn to the specific awards made by the district court. We have concluded that it is necessary to reduce some of these awards and to increase one of them. However, we have calculated these changes ourselves rather than remand for recalculation. In the circumstances of this case, we think we not only may but should take this procedural route. The authority for doing so is 28 U.S.C. § 2106 which reads: The Supreme Court or any other court of appellate jurisdiction may modify . . . any judgment, decree, or order" }, { "docid": "11932249", "title": "", "text": "recovered by the plaintiff, from the date of the decedent’s death, shall be added to and ho a part of the total sum awarded.” . The court iu McWeeney, while noting the speculative nature of a deduction for income taxes, also indicated that in certain cases involving extremely high incomes the injustice which would result to a defendant from ignoring future taxes might outweigh the injustice which would ordinarily be done a plaintiif by reducing the award of damages to allow for the speculative tax element, 282 F.2d at 38-39. Since the average annual income of decedent here was not in an upper income range, we need not concern ourselves with -this possible exception to the rule of Mc-Weeney. . It was on this basis that the court below distinguished the McWeeney case. . While the court in Montellier did indicate ••that it would have affirmed the lower ■court had it taken the opposite course of deducting a sum for future taxes, 315 F. ‘2d at 186, this statement was not prompted by any doubt as to the applicability of McWeeney to a non-jury case. Rather, .as the opinion in Montellier makes clear, it •was due to the court’s belief that the annual income there involved was large enough so that the lower court, in its ■discretion, could have utilized the exeeption to the McWeeney rule which we have discussed in footnote 4, supra. . In banc action was requested on this issue by a member of the court, but the request failed to receive the support of a majority of the active judges. . As we have stated, the lower court, in addition to deducting future taxes in computing the lost earnings due libelant, also credited libelant with a sum designed to take into account the taxes on the por tion of the award that was discounted for present value. Recomputation of the proper damages due libelant must, since future taxes are not a proper consideration in computing future lost earnings, eliminate any sum designed to credit libelant with future taxes on the discounted portion of the award. ." }, { "docid": "3922396", "title": "", "text": "plaintiff or a plaintiff’s decedent, had potential earnings of $100,000 a year, more than half of which would have been consumed by income taxes, an award of damages based on gross earnings would be plainly excessive even after taking full account of the countervailing factors we have mentioned. We find it hard to believe that juries would render such a verdict even in the absence of instruction; but in this limited class of cases the court may properly give some charge or, perhaps better, use the tools provided by Fed.R. Civ.Proe. 49, and an excessive verdict may always be set aside. In such cases, which in proportion are relatively few, the criticism that the whole process of computation is unrealistic has a considerable measure of validity, the projection of future income at such levels being itself extremely conjectural and the slope of the tax progression curve declines although only after having reached such a high plateau that earnings above it have relatively slight value. Such cases are in sharp contrast to the great mass of litigation at the lower or middle reach of the income scale, where future income is fairly predictable, added exemptions or deductions drastically affect the tax and, for the reasons indicated, the plaintiff is almost certain to be undercompensated for loss of earning power in any event. To be sure a practice of refusing the instruction in most cases but requiring some adjustment in a few lacks precision and elegance; but we cannot disregard the practicalities of judicial administration and ‘the law is untidy as life with which it deals.’ Just where the line should be drawn must be left, as so much is, to the good sense of trial judges, whether acting with a jury or without. Certainly the line was not approached here.” (Footnotes omitted) This Court has not previously considered this precise issue. In Phoenix Indemnity Co. v. Givens, 5 Cir. 1959, 263 F.2d 858, the defendant complained that the trial judge had erred in admitting evidence as to the gross amount of the plaintiff’s earnings. We perceived no error in that ruling" }, { "docid": "10366746", "title": "", "text": "capacity from that in which he would receive damages for conscious suffering. The release given by the deceased does not bar recovery in this action for death. * * * Different conclusions may be reached in states where the death statutes follow the compensatory principle of Lord Campbell’s Act rather than the penalty principle of our statutes.” Wall v. Massachusetts Northeastern St. Ry., 229 Mass. 506, 118 N.E. 864 (1918). See also Oliveria v. Oliveria, 305 Mass. 297, 25 N.E.2d 766 (1940). Decisions from jurisdictions in which the statutes permit recovery only if the decedent could have recovered had he lived are inapposite. Finally, the government urges that the trial court erred in its computation of damages by failing to deduct from the decedent’s projected gross income the income taxes he would have been required to pay. It would not have been erroneous, under the rule of McWeeney v. New York, N. H. & H. R. R., 282 F.2d 34, 39 (2d Cir., en banc), cert. denied, 364 U.S. 870, 81 S.Ct. 115, 5 L.Ed.2d 93 (1960), for the trial judge to have made a deduction for income taxes, which would have amounted to a substantial sum in this case. However, Montellier’s potential earnings were not so clearly above the “middle reach of the income scale” that it was erroneous not to make such a deduction. As we indicated in McWeeney, no precise line can be drawn. Affirmed. DIMOCK, District Judge I concur in the result. . 28 U.S.C. § 1346(b): “(b) Subject to tlie provisions of chapter 171 of this title, the district courts, * * * shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, * * * for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of Ms office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act" }, { "docid": "11932239", "title": "", "text": "to follow different procedural rules when he is sitting without a jury, as, for example, when certain types of otherwise excludable evidence are allowed to be introduced, this is •quite different from permitting a court to follow a different rule of substantive law because a judge is sitting without a jury. There is no possible way of justifying the application of different ■substantive rules of damages which would logically result in awards of lower recoveries in non-jury cases than in jury ¡cases. We have considered the case of O’Connor v. United States, 269 F.2d 578 (2 Cir. 1959), but we do not regard it as compelling the use of a net income figure in the ease at bar. As we pointed out in McWeeney, the court in O’Connor was bound to apply the Oklahoma law of damages, and the case law of that state, far from being silent on the issue of the deductibility of taxes, clearly indicated that a net income figure was to be used. Although respondent argues that the Oklahoma law which the O’Connor court looked to was no more definitive on the subject than the New York law currently is, we do not agree with respondent. In Magnolia Petroleum Co. v. Sutton, 208 Okl. 488, 257 P.2d 307 (1953), explicitly relied upon by the court in the O’Connor case, 269 F.2d at 585, the Oklahoma Supreme Court, in computing a proper amount of damages for lost earnings, actually used a figure representing wages after the deduction of withholding taxes. 208 Okl. 488, 257 P.2d at 316. We have already discussed the comparable New York law on the subject, and it is obvious that there is nothing in that law that even approaches the clear directive the O’Connor court discerned in the state law of Oklahoma that it had to apply. Finally, while McWeeney did not, and indeed could not, overrule O’Con-nor as to the necessity of applying a state’s rule on gross or net income where that state’s rule of damages was being applied, McWeeney did necessarily overrule O’Connor as to any implication in the O’Connor" }, { "docid": "15901666", "title": "", "text": "disallow consideration of the tax effect. McWeeney, supra, 282 F.2d at 38 (“There may be cases where failure to make some adjustment [for] income taxes would produce an improper result . . . .”); Johnson v. Penrod Drilling Co., 510 F.2d 234, 237 (5th Cir., 1975) (en banc) (Tax question not to be presented to the jury “in a case such as those [sic] at bar in which the annual wage rate ... is subject to an income tax rate which would not distort projections or result in a windfall’ recovery . .”). See also United States v. Sommers, 351 F.2d 354, 360 (10th Cir. 1965) (Tax question left to the trial judge, but “[undoubtedly situations may arise in which the failure to take into account income tax liability would produce an unconscionable result . . . .”). We do not consider our holdings in United States v. Becker, 378 F.2d 319 (1967), and McCauley v. United States, 470 F.2d 137 (1972) to be wholly inconsistent with this opinion. In both of those cases we affirmed FTCA awards based on Arizona law although the trial court had not deducted projected income taxes. However, in McCauley, the punitive damages issue apparently was not raised. Moreover, the court stated that no compelling reasons had been cited for adopting a fixed rule that would restrict the trial court’s evaluation of what damages would be reasonable. In Becker the lost income was $15,000 per year — much lower than the incomes which concern us here. The review of cases in Boxberger, supra, 529 F.2d at 290, indicates that this $15,000 income would fall near the top of the McWeeney “lower or middle reach of the income scale,” 282 F.2d at 39, where income taxes are not taken into account. Furthermore, in both of these cases we avoided establishing a hard and fast rule that income taxes could not be deducted. In McCauley we said: We assume that in the case at bar the experienced trial judge was able to evaluate, as required by Arizona law, the whole of the evidence and reach a reasonable" }, { "docid": "11932238", "title": "", "text": "decision was explained as a. continued adherence to Stokes v. United States, supra, where this court, branding deductions for future taxes as “too ■conjectural,” affirmed the use of the .gross income measure by a trial court sitting without a jury. More recently we :had occasion to apply the rule of Mc-Weeney to a suit under the Massachusetts Wrongful Death Act where we affirmed the refusal of a court sitting ■without a jury to deduct future taxes in calculating future lost earnings, Mon-tellier v. United States, supra. There is a further reason for xef using to distinguish McWeeney on the ■ground that it dealt with the computation of damages by a jury. To so distinguish McWeeney would amount to sanctioning the use of two different rules of substantive law to be applied to identical sets of facts, with the one or the other rule to be applied depending upon whether a jury or a court were sitting as the trier of fact. While there are situations where the special training of a judge makes it permissible to follow different procedural rules when he is sitting without a jury, as, for example, when certain types of otherwise excludable evidence are allowed to be introduced, this is •quite different from permitting a court to follow a different rule of substantive law because a judge is sitting without a jury. There is no possible way of justifying the application of different ■substantive rules of damages which would logically result in awards of lower recoveries in non-jury cases than in jury ¡cases. We have considered the case of O’Connor v. United States, 269 F.2d 578 (2 Cir. 1959), but we do not regard it as compelling the use of a net income figure in the ease at bar. As we pointed out in McWeeney, the court in O’Connor was bound to apply the Oklahoma law of damages, and the case law of that state, far from being silent on the issue of the deductibility of taxes, clearly indicated that a net income figure was to be used. Although respondent argues that the Oklahoma law which" }, { "docid": "3922388", "title": "", "text": "speculate about the uncertainties of the future. With anything as sure as ‘death and taxes’, the courts are avoiding their responsibilities when they decline to make the best guess they can, once all the reasonably available evidence has been brought before them. It is noteworthy that the British House of Lords has recently held that damages for past and prospective earnings should be based on estimated net income after taxes.” “The Law of Torts”, Harper and James, § 25.12, pages 1326-1327. The leading theoretical exposition of the merits of not restricting the jury to a computation of the plaintiff’s net earnings (after taxes) appears in Judge Friendly’s opinion for the Second Circuit in McWeeney v. New York, New Haven, and Hartford Railroad Company, 2 Cir. 1960, 282 F.2d 34, 36-39, cert. denied 1960, 364 U.S. 870, 81 S.Ct. 115, 5 L.Ed.2d 93: “The instruction here requested and refused illustrates the delusive simplicity with which the subject has been invested. Defendant wished the jury to be told merely that ‘If your verdict is in favor of plaintiff, you must calculate any past or future loss of earnings on the basis of his net income after deduction of income taxes.’ All of us agree the jury needs more guidance than that. But what is the alternative? The trial court could begin by instructing that under the optional tax provided in § 3 of the Internal Revenue Code, which Mc-Weeney was entitled to elect, the tax on a bachelor’s income of $4,800 would have been $773. This is still simple enough but the jury must determine not what McWeeney’s tax on $4,800 now is but what it would be over his expectancy. In these lower brackets the amount of the tax and its percentage relation to earnings are enormously affected by the number of exemptions. The simple act of matrimony, coupled with the filing of a joint return, would reduce McWeeney’s tax from $773 to $620. Is the jury to consider the likelihood of this not unusual occurrence? If the lady brought two children with her, or if these were produced in the" }, { "docid": "9825378", "title": "", "text": "the Court addressed a closely related issue under the Federal Employers Liability Act, a statute that, like the FTCA, strictly limits recovery to compensatory damages. The Court held that the trial court erred in excluding the impact of federal income taxes on the deceased’s expected annual earnings between approximately $12,000 and $17,000, stating: “It is [the deceased’s] after-tax income, rather than his gross income before taxes, that provides the only realistic measure of his ability to support his family.” Id. at 493, 100 S.Ct. at 757. Both logic and precedent persuade us that, to avoid an award of punitive damages, income taxes usually must be deducted from future earnings awarded under the FTCA. The plaintiffs do not dispute the validity of this general principle. Based on McWeeney v. New York, New Haven & Hartford, R.R., 282 F.2d 34 (2d Cir. 1960) and its progeny, they instead argue that an exception to it exists where the decedent’s estimated future earnings are in the low to middle income range. In FELA and maritime cases we have held that the impact of taxes on relatively low incomes is properly withheld from the jury’s consideration, reasoning that juries cannot be expected to comprehend and apply the intricacies of federal income tax law accurately. Johnson v. Penrod Drilling Company, 510 F.2d 234, 236-37 (5th Cir. 1975) (en banc) (maritime); Blue v. Western Ry., 469 F.2d 487, 496 (5th Cir. 1972) (FELA). Unlike some other circuits, however, Kalavity v. U.S., 584 F.2d 809, 812-13 (6th Cir. 1978); Montellier v. U.S., 315 F.2d 180 (2d Cir. 1963), we have not recognized the so-called McWeeney exception in bench-trial FTCA cases. See Hartz v. U.S., supra (holding that trial judge properly considered taxes on an estimated annual income of $65,000). We decline to do so here. Liepelt casts serious doubt on the continued validity of the McWeeney exception, even in jury trial cases. In holding that the jury should have been presented with evidence regarding the effect of taxes, the Court flatly repudiated the basis of the McWeeney exception, the fear that the jury will be confused by complex" }, { "docid": "22572178", "title": "", "text": "a full discussion by Morris and Nordstrom in Personal Injury Recoveries and the Federal Income Tax Law, 46 A.B.A.Journal 274, in which the authors develop the arguments in favor of giving charges such as 17 and 18. See also Harper & James, The Law of Torts, § 25.12. Of course we are apt to talk glibly of the jury’s complex computations when we know full well that the give and take of the jury room is in round figures and does not deal in actuarial tables, decimal points and percentages. So in this case, Judge Weinfeld charged in general terms about discounting the money which the jury might award for future loss. His instructions really amounted to no more than saying that the amount awarded now should be considerably less than the multiplication of lost earnings by a certain number of years of expectancy. Nor do any of the additional factors which Judge FRIENDLY throws into the scales merit serious consideration. His opinion says there are at least two factors which tend to reduce the actual values of verdicts given plaintiffs — inflation and the fact that the plaintiff must pay a reasonable percentage of the recovery to his attorney. As to inflation, what tomorrow’s values will do with today’s dollar can hardly be argued to be more harmful to plaintiffs than to defendants. We can only deal in today’s dollar. On any other basis any trial would soon be out of hand with only the sky as the limit. Defendants too must live with inflation, be they railroads or individuals; indeed railroads seem to have even more difficulty with inflation than do individuals. A plaintiff receiving a large amount will invest the money in all likelihood in such a manner that he will have some protection against both inflation and deflation. Judge FRIENDLY’S second suggestion is also a matter the consequence of which should not in fairness be visited upon a defendant under our present view that each party must pay his own attorney. It is true that contingent fees are the rule in these cases and plaintiffs consequently" }, { "docid": "22572159", "title": "", "text": "and Counsellors at Law, Rule 4. There may be cases where failure to make some adjustment for the portion of a plaintiff’s or decedent’s earnings that would have been taken by income taxes would produce an improper result; but these are at the opposite end of the income spectrum from McWeeney’s. For example, if a plaintiff or a plaintiff's decedent, had potential earnings of $100,000 a year, more than half of which would have been consumed by income taxes, an award of damages based on gross earnings would be plainly excessive even after taking full account of the countervailing factors we have mentioned. We find it hard to believe that juries would render such a verdict even in the absence of instruction; but in this limited class of cases the court may properly give some charge or, perhaps better, use the tools provided by Fed.R.Civ.Proc. 49, and an excessive verdict may always be set aside. In such cases, which in proportion are relatively few, the criticism that the whole process of computa tion is unrealistic has a considerable measure of validity, the projection of future income at such levels being itself extremely conjectural, and the slope of the tax progression curve declines although only after having reached such a high plateau that earnings above it have relatively slight value. Such cases are in sharp contrast to the great mass of litigation at the lower or middle reach of the income scale, where future income is fairly predictable, added exemptions or deductions drastically affect the tax and, for the reasons indicated, the plaintiff is almost certain to be undercompensated for loss of earning power in any event. To be sure a practice of refusing the instruction in most cases but requiring some adjustment in a few lacks precision and elegance; but we cannot disregard the practicalities of judicial administration and “the law is untidy as life with which it deals.” Just where the line should be drawn must be left, as so much is, to the good sense of trial judges, whether acting with a jury or without. Certainly the line" }, { "docid": "22572177", "title": "", "text": "a Federal Tort Claims Act case must deduct income taxes in computing loss of future earnings. There is no reason why there should be a different rule for jury cases. Jurors are as sophisticated about income taxes as are judges; they are just as able to make an estimate of what the taxes would be on the future earnings which they are asked to find that the plaintiff would have made had it not been for the accident. Our earlier decision in Stokes v. United States, 2 Cir., 1944, 144 F.2d 82, 87, is not persuasive authority to the contrary. The question received only casual treatment in the briefs and was disposed of in one brief sentence by Judge Frank who said merely that “such deductions are too conjectural.” We are much more certain of the continuance of federal income taxes in 1960 than we were in 1944. In our own circuit Connecticut has recognized the charge as proper. Floyd v. Fruit Industries, 1957, 144 Conn. 659, 136 A.2d 918, 63 A.L.R.2d 1393. There is a full discussion by Morris and Nordstrom in Personal Injury Recoveries and the Federal Income Tax Law, 46 A.B.A.Journal 274, in which the authors develop the arguments in favor of giving charges such as 17 and 18. See also Harper & James, The Law of Torts, § 25.12. Of course we are apt to talk glibly of the jury’s complex computations when we know full well that the give and take of the jury room is in round figures and does not deal in actuarial tables, decimal points and percentages. So in this case, Judge Weinfeld charged in general terms about discounting the money which the jury might award for future loss. His instructions really amounted to no more than saying that the amount awarded now should be considerably less than the multiplication of lost earnings by a certain number of years of expectancy. Nor do any of the additional factors which Judge FRIENDLY throws into the scales merit serious consideration. His opinion says there are at least two factors which tend to reduce the" }, { "docid": "11932237", "title": "", "text": "without a. jury. While McWeeney did indeed deal with the difficulty a jury would have in. applying an instruction framed in terms-of net income after taxes, the important-factors cited as causing difficulty there-would appear to apply with almost equal force to a court sitting without a jury. Thus, the court in McWeeney pointed to the impossibility of predicting the-number of future exemptions a taxpayer-might become entitled to as well as the-effective dates of such exemptions. Can it be seriously argued that a trial judge-is for some reason more adept at making-such predictions than a jury ? Moreover,, the McWeeney decision was based in-part on the fact that plaintiff’s judgment, in a case like this is usually less than-compensatory because of inflation and' attorney fees, elements that are certainly unaffected by whether a court or a. jury sits as the trier of fact. Finally,, the way this court in McWeeney related' its decision there to prior case law is-a further indication that McWeeney cannot be legitimately distinguished on the-ground that it dealt with jury instructions. The decision was explained as a. continued adherence to Stokes v. United States, supra, where this court, branding deductions for future taxes as “too ■conjectural,” affirmed the use of the .gross income measure by a trial court sitting without a jury. More recently we :had occasion to apply the rule of Mc-Weeney to a suit under the Massachusetts Wrongful Death Act where we affirmed the refusal of a court sitting ■without a jury to deduct future taxes in calculating future lost earnings, Mon-tellier v. United States, supra. There is a further reason for xef using to distinguish McWeeney on the ■ground that it dealt with the computation of damages by a jury. To so distinguish McWeeney would amount to sanctioning the use of two different rules of substantive law to be applied to identical sets of facts, with the one or the other rule to be applied depending upon whether a jury or a court were sitting as the trier of fact. While there are situations where the special training of a judge makes it permissible" }, { "docid": "11932261", "title": "", "text": "of our national economy. Third, the trial court is not reducing an amount “which libelant would otherwise be entitled to.” This begs the very question here for decision. The sole basis of the award should be to provide that which he, and through him his family, would have received. He could scarcely enjoy that which had been sent to the Internal Revenue District Director. Therefore, the too speculative argument rests on a false premise. Of course, many hypothetical situations can be imagined. Children will be exemptions; over 21 years of age they will not be. Single men may marry; married men may become widowed. But the salary check actually received will continue to be all that the employee has to spend and divide with his family. In this circuit we have had Stokes v. United States, 144 F.2d 82, 2 Cir., 1944; O’Connor; McWeeney and Montellier. In Stokes the trial judge refused to make a deduction for income taxes in estimating expected earnings. This court found no error in this refusal, merely saying, “such deductions are too conjectural.” In O’Connor a deduction for estimated Federal income taxes made by a judge in a non-jury case was definitely approved. McWeeney was a jury case in which the issue was raised by the refusal of the trial court to give two requests, one, that no sum was to be added to any verdict because of income taxes and the other, that loss of earnings must be calculated on the basis of net income after taxes. A reading of the majority opinion in Mc-Weeney reveals rather clearly a belief that the increased salary base because of failure to submit net earnings to the jury was considered as an offset to the inroads of inflation and counsel fees. This surmise is supported by the majority’s own construction of McWeeney which they say was decided “in part on the fact that plaintiff’s judgment in a case like this is usually less than compensatory because of inflation and attorney’s fees * * Montellier was a non-jury ease. Although this court did not hold failure to deduct" } ]

[ { "docid": "8070750", "title": "", "text": "role does not alone raise special antitrust concerns. As we reasoned in Capital Imaging Assocs., P.C. v. Mohawk Valley Med. Assocs., Inc., 996 F.2d 537, 543 (2d Cir.1993), “[i]n-sisting on proof of harm to the whole market fulfills the broad purpose of the antitrust law that was enacted to ensure competition in general, not narrowly focused to protect individual competitors.” While ECC’s allegations suggest that it was harmed by Toshiba’s decision to terminate it as a distributor, they do not show that the agreement threatens to harm overall competition in the cellular telephone market. Accordingly, its section 1 claim was properly dismissed. C. Monopolization: Sherman Act Section 2 Section 2 of the Sherman Act provides that “[e]very person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize, any part of the trade or commerce among the several States ... shall be deemed guilty of' a felony.” 15 U.S.C. § 2. A claim under section 2 must allege “(1) concerted action, (2) overt acts in furtherance of the conspiracy, and (3) specific intent to monopolize.” Volvo N. Am. Corp. v. Men’s Int’l Prof'l Tennis Council, 857 F.2d 55, 74 (2d Cir.1988). Intent alone is not sufficient, however; the defendant’s power in the relevant market -must be established, to establish whether the defendant is a monopolist or is threatening to become one. See Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 455-56, 113 S.Ct. 884, 890-91, 122 L.Ed.2d 247 (1993). ECC alleges that the agreement between Audiovox and Toshiba was entered into with the intent “to protect, continue and extend AudioVox’s market share and market power in and with respect to the cellular telephone equipment market generally, and more specifically, in that segment, part or component of that market comprised and represented by the Bell Carriers and Mobile Electronic Stores.” We reject ECC’s section 2 claim for substantially the same reasons outlined in our discussion of ECC’s section 1 claim. The agreement between Audiovox and Toshiba cannot harm competition, and therefore cannot serve to further an alleged monopolization scheme. Because we dispose" } ]

[ { "docid": "23237287", "title": "", "text": "possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.” United States v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966); see Clorox Co. v. Sterling Winthrop, Inc., 117 F.3d 50, 61 (2d Cir.1997). To state an attempted monopolization claim, a plaintiff must establish “(1) that the defendant has engaged in predatory or anticompetitive conduct with (2) a specific intent to monopolize and (3) a dangerous probability of achieving monopoly power.” Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456, 113 S.Ct. 884, 122 L.Ed.2d 247 (1993); Tops Mkts., 142 F.3d at 99-100. A. The Relevant Market As an initial matter, it is necessary to define the relevant product and geographic market Coca-Cola is alleged to be monopolizing. See AD/SAT v. Associated Press, 181 F.3d 216, 226 (2d Cir.1999); cf. Brown Shoe Co. v. United States, 370 U.S. 294, 325, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962). The parties do not dispute that the relevant geographic market is the United States. A relevant product market consists of “products that have reasonable interchangeability for the purposes for which they are produced — price, use and qualities considered.” United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 404, 76 S.Ct. 994, 100 L.Ed. 1264 (1956) (“du Pont”). Products will be considered to be reasonably interchangeable if consumers treat them as “acceptable substitutes.” FTC v. Cardinal Health, Inc., 12 F.Supp.2d 34, 46 (D.D.C.1998) (“[T]he relevant market consists of all of the products that the Defendants’ customers view as substitutes to those supplied by the Defendants.”). In its complaint, PepsiCo defined the relevant market as the “market for fountain-dispensed soft drinks distributed through [IFDs] throughout the United States.” Pepsico sought to narrow this market definition on summary judgment by confining it to customers with certain characteristics, specifically “large restaurant chain accounts that are not ‘heavily franchised’ with low fountain ‘volume per outlet.’ ” PepsiCo, 114 F.Supp.2d at 246. The" }, { "docid": "23100722", "title": "", "text": "the market and, by undercutting those prices, quickly erode Quality’s market share. See, e.g., Oahu Gas Serv., Inc. v. Pacific Resources Inc., 838 F.2d 360, 366 (9th Cir.1988) (“A high market share, though it may ordinarily raise an inference of monopoly power, will not do so in a market with low entry barriers or other evidence of a defendant’s inability to control prices or exclude competitors.”) (citations omitted); Ball Mem’l Hosp., Inc. v. Mutual Hosp. Ins., Inc., 784 F.2d 1325, 1335 (7th Cir.1986) (“[T]he lower the barriers to entry ... the less power existing firms have.”). On this record we can draw no reasonable inference other than that Quality lacks monopoly power. Despite its high market share, no other evidence — such as barriers to entry, the elasticity of demand, or the nature of defendant’s conduct — supports the conclu-. sion that Quality can control prices or exclude competition and in fact, Wegmans’ quick garnishment of such high market share dispositively refutes such a conclusion. Thus, absent a showing of Quality’s monopoly power, Tops’ claim for completed monopolization was properly dismissed. B. Attempted Monopolization To establish a claim for attempted monopolization, a plaintiff must prove: “(1) that the defendant has engaged in predatory or anticompetitive conduct with (2) a specific intent to monopolize and (3) a dangerous probability of achieving monopoly power.” Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456, 113 S.Ct. 884, 890-91, 122 L.Ed.2d 247 (1993); see also Walsh Trucking, 812 F.2d at 790. In the discussion that follows we deal first with anticompetitive conduct, second with a dangerous probability of achieving monopoly power and, third, with defendants’ intent. 1. Anticompetitive Conduct A factfinder could reasonably find that the Quality defendants’ and Paige’s conduct was anticompetitive. For purposes of this summary judgment motion, we assume that a valid contract existed between Paige and Tops for the sale of the Washington Street site; the Quality defendants interfered with that contract and induced Paige to breach it; and Paige then sold to Sunrise the land targeted by Tops for its store site. The plain effect of this conduct was" }, { "docid": "16931302", "title": "", "text": "1 of the Sherman Act501 F.Supp. at 511. Although the court did not make a finding as to whether appellants had the specific intent to monopolize, it ruled that a showing of specific intent is not required to sustain a conspiracy to monopolize claim where actual monopoly power is proven. The court reasoned that such power existed in this case because appellants excluded all competition from the relevant market through a network of interlocking contracts. We disagree. Specific intent to monopolize the relevant market is a necessary element of conspiracy to monopolize. Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 626, 73 S.Ct. 872, 889, 97 L.Ed. 1277 (1953); Carpet Seaming Tape Licensing v. Best Seam, Inc., 616 F.2d 1133, 1141 (9th Cir. 1980); V. & L. Cicione, Inc. v. C. Schmidt & Sons, Inc., 403 F.Supp. 643, 651 (E.D.Pa.1975), aff’d 565 F.2d 154 (3d Cir. 1977). Such intent may be inferred, however, from the proof of actual monopoly power. American Tobacco Co. v. United States, 328 U.S. 781, 789, 66 S.Ct. 1125, 1129, 90 L.Ed. 1575 (1946); L. Sullivan, Handbook of the Law of Antitrust 133 (1977). Monopoly power consists of the ability to control prices or exclude competition from the relevant market. United States v. Grinnell Corporation, 384 U.S. 563, 571, 86 S.Ct. 1698, 1704, 16 L.Ed.2d 778 (1966); United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 391, 76 S.Ct. 994, 1004, 100 L.Ed. 1264 (1956). The district court held that appellants did not have the ability to control the price of baseball trading cards. Hence, in order to sustain the section 2 violation the district court must have found that appellants excluded all meaningful competition from the baseball trading card market. This is a mixed question of law and fact which is not governed by the “clearly erroneous” standard. We conclude that the district court erred. As was discussed in reference to the section 1 claims, the contracts at issue did not foreclose competition in the relevant product market. In sales of trading cards with gum, rival manufacturers could compete against" }, { "docid": "22586551", "title": "", "text": "to do so. Unlike the plaintiffs in Kodak, plaintiffs here must purchase products from Domino’s Pizza not because of Domino’s market power over a unique product, but because they are bound by contract to do so. If Domino’s Pizza, Inc. acted unreasonably when, under the franchise agreement, it restricted plaintiffs’ ability to purchase supplies from other sources, plaintiffs’ remedy, if any, is in contract, not under the antitrust laws. For these reasons, we agree with the district court that plaintiffs have not pleaded a valid relevant market. C. Plaintiffs’ claim for attempt to monopolize fails for the same reasons. To prevail on an attempted monopolization claim under § 2 of the Sherman Act, “a plaintiff must prove that the defendant (1) engaged in predatory or anticompetitive conduct with (2) specific intent to monopolize and with (3) a dangerous probability of achieving monopoly power.” Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456, 113 S.Ct. 884, 890,122 L.Ed.2d 247 (1993). Ideal Dairy Farms, Inc. v. John Labatt, Ltd., 90 F.3d 737, 750 (3d Cir.1996); Advo, Inc. v. Philadelphia Newspapers, Inc., 51 F.3d 1191, 1197 (3d Cir.1995). In order to determine whether there is a dangerous probability of monopolization, a court must inquire “into the relevant product and geographic market and the defendant’s economic power in that market.” Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 459, 113 S.Ct. 884, 892, 122 L.Ed.2d 247 (1993); Ideal Dairy Farms at 750; Pastore v. Bell Telephone Co. of Pennsylvania, 24 F.3d 508, 512 (3d Cir.1994). Plaintiffs’ attempted monopoly claim is predicated on the identical proposed relevant market underlying its monopoly claim: a market in the ingredients, supplies, and materials used by Domino’s pizza stores. Because the products within this proposed market are interchangeable with other products outside of the proposed market, the claim was properly dismissed. D. Plaintiffs allege exclusive dealing arrangements entered into by Domino’s Pizza, Inc. have unreasonably restrained trade in violation of § 1 of the Sherman Act, 15 U.S.C. § 1. Section 1 of the Sherman Act provides: “Every contract, combination in the form of trust or otherwise, or conspiracy," }, { "docid": "22221356", "title": "", "text": "independents who choose to contract. No network has any economic incentive to frustrate or ex-elude independent shops, as without the independents the networks themselves could not secure the contracts they need to survive in the marketplace. In sum, the several hundred exhibits submitted in opposition to the summary judgment motion fail to substantiate Section 1 antitrust violations, whether characterized in terms of unreasonable restraint of trade or unlawful boycott. As such, summary judgment with respect to Section 1 was properly granted, and we affirm. B. Section 2 of the Sherman Antitrust Act Section 2 of the Sherman Antitrust Act provides a cause of action against “single firms that monopolize or attempt to monopolize, as well as conspiracies and combinations to monopolize.” Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 454, 113 S.Ct. 884, 122 L.Ed.2d 247 (1993). Monopoly power is understood as “the power to control price or exclude competition.” United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 391, 76 S.Ct. 994, 100 L.Ed. 1264 (1956). Although appellants’ claims under Section 2 are vaguely stated at best, it is clear on the facts of this case that no single appellee engaged in an attempt to monopolize, nor did any one entity succeed in singularly monopolizing, the auto glass repair market. Appellees’ uncontroverted summary judgment evidence, in fact, points dramatically in the other direction, as the auto glass repair market includes numerous players, both large networks and individual shops, none of which individually wields the power to control prices or exclude competition. Appellants’ claim, rather, must be based on the notion that appellees acted jointly to exclude other participants, namely the independent shops, from freely participating in the market for auto repair work fueled by insurance company demand. Collectively, the argument must run, appellees wielded market power sufficient to dominate the market in monopolistic form. As such, appellants claim must be located in the second clause of forbidden conduct under Section 2: conspiracies to monopolize. “A conspiracy to monopolize can be established only by proof of (1) the existence of specific intent to monopolize; (2) the" }, { "docid": "14152860", "title": "", "text": "In this connection, the Supreme Court explained: [Plaintiffs ... must prove more than injury casually linked to an illegal presence in the market. Plaintiffs must prove antitrust injury, which is to say injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants’ acts unlawful. The injury should reflect the anticompetitive effect either of the violation or of anticompetitive acts made possible by the violation. Brunswick Corp., 429 U.S. at 489, 97 S.Ct. 690; see Schuylkill Energy Resources, 113 F.3d at 413; Brader, 64 F.3d at 875. Applying these principles to the Counterclaims, the issue in the instant Motion is whether the Counterclaims sufficiently alleged a violation of Section Two of the Sherman Act, 15 U.S.C. § 2, to entitle Sequential to offer evidence in support of the Antitrust Counterclaim. 1. Allegations of Monopolization a. Monopoly Poiver As discussed, under a claim for monopolization, Sequential must ' have pleaded facts sufficient to show, inter alia, how Syncsort willfully acquired or maintained monopoly power to exclude competitors . from the relevant market. See Schuylkill Energy Resources, 113 F.3d at 415; see also American Tobacco Co. v. United States, 328 U.S. 781, 809, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946); Garshman, 824 F.2d at 229; Hudson’s Bay Co., 651 F.Supp. at 844. A claim for attempted monopolization, however, does not require Sequential to have pleaded actual possession of monopoly power. See Spectrum Sports, 506 U.S. at 456, 113 S.Ct. 884; Rolite, Inc. v. Wheelabrator Environmental Sys., Inc., 958 F.Supp. 992, 1001 (E.D.Pa.1997). An attempted monopolization claim nevertheless requires Sequential to have pleaded Syncsort has a dangerous probability of achieving monopoly power in the relevant market. See Spectrum Sports, 506 U.S. at 456, 113 S.Ct. 884. Monopoly or market power has been defined as the power to control prices or exclude competition in the relevant market. See Grinnell, 384 U.S. at 571, 86 S.Ct. 1698; United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 391, 76 S.Ct. 994, 100 L.Ed. 1264 (1956)(“du Pont”); Hudson’s Bay Co., 651 F.Supp. at 844. Market" }, { "docid": "8790894", "title": "", "text": "plausible, its claims for monopolization in violation of § 2 of the Sherman Act, conspiracy to monopolize in violation of § 2 of the Sherman Act, and conspiracy in restraint of trade in violation of § 1 of the Sherman Act must be dismissed. C. Sandoz’s Attempted Monopolization Claim Fails Sandoz has also alleged a claim of attempted monopolization in violation of Section 2 of the Sherman Act. “[T]o demonstrate attempted monopolization!,] a plaintiff must prove (1) that the defendant has engaged in predatory or anticompetitive conduct with (2) a specific intent to monopolize and (3) a dangerous probability of achieving monopoly power.” Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456, 113 S.Ct. 884, 122 L.Ed.2d 247 (1993). “In order to determine whether there is a dangerous probability of monopolization, courts have found it necessary to consider the relevant market and the defendant’s ability to lessen or destroy competition in that market.” Id.; see also AD/SAT, a Div. of Skylight, Inc., 181 F.3d at 226 (“ ‘A threshold showing for a successful attempted monopolization claim is sufficient market share by the defendant’ because a defendant’s market share is ‘the primary indicator of the existence of a dangerous probability of success.’ ” (quoting Twin Labs., Inc. v. Weider Health & Fitness, 900 F.2d 566, 570 (2d Cir.1990))). Accordingly, for purposes of its attempted monopolization counterclaim, Sandoz need not plead that Bayer actually possesses monopoly power; facts demonstrating that Bayer has a dangerous probability of achieving monopoly power in the relevant market are sufficient. “Monopoly or market power has been defined as the power to control prices or exclude competition in the relevant market. Market pow er may be inferred from a predominant share of the market, but may also exist when an entity does not have a majority of the market share.” Syncsort Inc. v. Sequential Software, Inc., 50 F.Supp.2d 318, 329 (D.N.J.1999) (internal citations omitted). “Once the relevant market is determined, we consider a variety of factors in addition to defendant’s market share, including the strength of competition, barriers of entry, and the probable development of the market, in" }, { "docid": "8812318", "title": "", "text": "fails to establish the elements of a per se claim (for example, by failing to demonstrate market power), it still may prevail under the “rule of reason” if it can demonstrate that the challenged arrangements are unreasonable “in light of their actual effects on the market and their pro-competitive justifications.” Clorox Co. v. Sterling Winthrop, Inc., 117 F.3d 50, 56 (2d Cir.1997). Such an inquiry proceeds in three steps: First, the [p]laintiff bears the initial burden of showing that the challenged action has had an actual adverse effect on competition as a whole in the relevant market ____ Then, [i]f the plaintiff succeeds, the burden shifts to the defendant to establish the pro-competitive redeeming virtues of the action. Should the defendant carry this burden, the plaintiff must then show that the same pro-competitive effect could be achieved through an alternative means that is less restrictive of competition. Id. (internal citations and quotation marks omitted; alterations in original). b. Attempt and Conspiracy to Monopolize, Sherman Act § 2 Section Two of the Sherman Act provides in relevant part that [e]very person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony. 15 U.S.C. § 2 (1994). To win on an attempt to monopolize claim, a plaintiff must show “(1) that the defendant has engaged in predatory or anticompetitive conduct with (2) a specific intent to monopolize and (3) a dangerous probability of achieving monopoly power.” Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456, 113 S.Ct. 884, 122 L.Ed.2d 247 (1993). To win on a conspiracy to monopolize claim, a plaintiff must show “(1) proof of a concerted action deliberately entered into with the specific intent to achieve an unlawful monopoly, and (2) the commission of an overt act in furtherance of the conspiracy.” International Distribution Ctrs., Inc. v. Walsh Trucking Co., Inc., 812 F.2d 786, 795 (2d Cir.1987). 3. The Injury in Fact Requirement: Amenability to Class Determination The" }, { "docid": "8403763", "title": "", "text": "prove its attempted monopolization claim, Plaintiff must show: “(1) that the defendant has engaged in predatory or anticompetitive conduct with (2) a specific intent to monopolize, and (3) a dangerous probability of achieving monopoly power.” Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456, 113 S.Ct. 884, 122 L.Ed.2d 247 (1993); Technical Res. Servs., Inc. v. Dornier Med. Sys., Inc., 134 F.3d 1458, 1466 (11th Cir.1998); U.S. Anchor Mfg., Inc. v. Rule Indus., Inc., 7 F.3d 986, 993 (11th Cir.1993). As did the U.S. Anchor court, this Court considers the factors for attempted monopolization in reverse order, beginning with dangerous probability of monopoly. U.S. Anchor. 7 F.3d at 993. Whether Defendants have a dangerous probability of monopoly involves quantifying the degree of their power in the relevant market. Technical Res., 134 F.3d at 1466; U.S. Anchor, 7 F.3d at 994. The Court must therefore consider the issue in two steps, by first defining the relevant market and then measuring the Defendants’ market power. U.S. Anchor, 7 F.3d at 994. a. Relevant Market “Defining a relevant product market is primarily ‘a process of describing those groups of producers which, because of the similarity of their products, have the ability — actual or potential — to take significant amounts of business away from each other.’ ” U.S. Anchor, 7 F.3d at 994 (quoting General Indus. Corp. v. Hartz Mountain Corp., 810 F.2d 795, 805 (8th Cir.1987)). Market definition often includes consideration of various factors, including the products’ qualities, uses and prices. See United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 404, 76 S.Ct. 994, 100 L.Ed. 1264 (1956). Markets relevant to antitrust analysis can also include sub-markets, if such submarkets are well-defined. Brown Shoe Co. v. United States, 370 U.S. 294, 325, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962). Defining a ‘submarket’ is the equivalent to defining a relevant product market for antitrust purposes. U.S. Anchor, 7 F.3d at 995. In the end, the definition of a relevant market is “essentially a factual question.” Id. at 994-95 (citing Yoder Bros. v. California Florida Plant Corp., 537 F.2d" }, { "docid": "9371173", "title": "", "text": "1980 were inconsistent, and that it did not yet have sufficient information to determine which of the figures was accurate. However, defendant argues that Frito-Lay’s power to exclude competition when coupled with its market share is sufficient to show that Frito-Lay wielded monopoly power. It would be premature to dismiss defendant’s monopolization claim at this time. Whether monopoly power actually exists is a question of fact to be determined from whether the plaintiff “can control prices or exclude competition.” U.S. v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 391, 76 S.Ct. 994, 1005, 100 L.Ed. 1264 (1956). Defendant has alleged specific conduct on the part of Frito-Lay which was calculated to acquire and maintain monopoly power. Although defendant will have to substantiate its claim of monopoly power in order to succeed at trial, the monopolization claim is sufficient to withstand the motion to dismiss. See Brager & Co., Inc. v. Leumi Securities Corp., 429 F.Supp. 1341 (S.D.N.Y.1977), aff'd, 646 F.2d 559 (2d Cir.1980), cert. denied, 451 U.S. 987, 101 S.Ct. 2322, 68 L.Ed.2d 845 (1981). Section 2 of the Sherman Act: Attempted Monopolization — Sixth Counterclaim For its sixth counterclaim, defendant alleges that Frito-Lay’s attempt to exclude its most effective competitors from valuable shelf space through the exercise of its market power constitutes attempted monopolization in violation of the Sherman Act. To state a claim of attempted monopolization, the defendant must allege facts which show that there is a dangerous probability of monopolization and the specific intent to destroy competition. Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 626, 73 S.Ct. 872, 890, 97 L.Ed. 1277 (1953). For the reasons discussed in the previous section, the claim of attempted monopolization is sufficient to withstand the motion to dismiss. Sections 2(a) and 2(d) of the RobinsonPatman Act — Seventh Counterclaim Defendant alleges that the TOP program was a form of unlawful price discrimination in violation of Sections 2(a) and 2(d) of the Robinson-Patman Act, 15 U.S.C. §§ 13(a), (d) (1982). Defendant claims that by offering profit guarantees to large supermarket chains only, Frito-Lay engaged in price discrimination" }, { "docid": "11262876", "title": "", "text": "two elements: “(1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superi- or product, business acumen, or historic accident.” United States v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966); accord Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 481-83, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992). Monopoly power is defined as “the power to control prices or exclude competition.” United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 391, 76 S.Ct. 994, 100 L.Ed. 1264 (1956). A firm that does not achieve monopoly power may nonetheless violate Section 2 through “attempted monopolization.” Proving attempted monopolization requires a showing of: (1) anticompetitive or exclusionary conduct; (2) with specific intent to monopolize; and (3) a dangerous probability of achieving monopoly power. See Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456, 113 S.Ct. 884, 122 L.Ed.2d 247 (1993). Anticompetitive conduct is “the use of monopoly power, however lawfully acquired, to foreclose competition, to gain a competitive advantage, or to destroy a competitor.” United States v. Griffith, 334 U.S. 100, 107, 68 S.Ct. 941, 92 L.Ed. 1236 (1948), disapproved of on other grounds by Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984). An assess ment of intent is critical in determining whether an accused monopolist’s actions qualify as anti-competitive conduct. Id. at 106-07, 68 S.Ct. 941; accord United States v. Colgate & Co., 250 U.S. 300, 307, 39 S.Ct. 465, 63 L.Ed. 992 (1919) (stating that “[i]n the absence of any purpose to create or maintain a monopoly, the [Sherman Act] does not restrict the long recognized right of [a] trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal”). Covad’s Sherman Act claims fall under three different categories of alleged anti-competitive behavior. - First, Covad complains that BellSouth denied Covad the use of an “essential" }, { "docid": "14152861", "title": "", "text": "from the relevant market. See Schuylkill Energy Resources, 113 F.3d at 415; see also American Tobacco Co. v. United States, 328 U.S. 781, 809, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946); Garshman, 824 F.2d at 229; Hudson’s Bay Co., 651 F.Supp. at 844. A claim for attempted monopolization, however, does not require Sequential to have pleaded actual possession of monopoly power. See Spectrum Sports, 506 U.S. at 456, 113 S.Ct. 884; Rolite, Inc. v. Wheelabrator Environmental Sys., Inc., 958 F.Supp. 992, 1001 (E.D.Pa.1997). An attempted monopolization claim nevertheless requires Sequential to have pleaded Syncsort has a dangerous probability of achieving monopoly power in the relevant market. See Spectrum Sports, 506 U.S. at 456, 113 S.Ct. 884. Monopoly or market power has been defined as the power to control prices or exclude competition in the relevant market. See Grinnell, 384 U.S. at 571, 86 S.Ct. 1698; United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 391, 76 S.Ct. 994, 100 L.Ed. 1264 (1956)(“du Pont”); Hudson’s Bay Co., 651 F.Supp. at 844. Market power may be inferred from a predominant share of the market. See id.; du Pont, 351 U.S. at 391, 76 S.Ct. 994; Fineman, 980 F.2d at 201. Market share is not always a surrogate for monopoly power, however. Monopoly power may also exist when an entity does not have a majority of the market share. See United States v. Columbia Steel Co., 334 U.S. 495, 527-28, 68 S.Ct. 1107, 92 L.Ed. 1533, reh’g denied, 334 U.S. 862, 68 S.Ct. 1525, 92 L.Ed. 1781 (1948). While market share may be the “most significant” factor in assessing monopoly power, see Pastore, 24 F.3d at 513, this Circuit has stated: [A]lthough the size of a defendant’s market share is a significant determinant of whether a defendant has a dangerous probability of successfully monopolizing the relevant market, it is not exclusive. Other factors to be considered include the strength of competition, probable de velopment of the industry, the barriers to entry, the nature of the anti-competitive conduct, and the elasticity of consumer demand. Barr Lab., 978 F.2d at 112;" }, { "docid": "8897657", "title": "", "text": "intent to monopolize and (3) a dangerous probability of achieving monopoly power.” Spanish Broadcasting System of Fla., Inc. v. Clear Channel, 376 F.3d 1065 (11th Cir.2004) (quoting Spectrum Sports, 506 U.S. at 456, 113 S.Ct. 884). To have a dangerous probability of successfully monopolizing a market the defendant must be close to achieving monopoly power. Monopoly power is “the power to raise prices to supra-eompetitive levels or ... the power to exclude competition in the relevant market either by restricting entry of new competitors or by driving existing competitors out of the market.” U.S. Anchor Mfg., Inc., 7 F.3d at 994, quoting American Key Corp. v. Cole Nat’l Corp., 762 F.2d 1569, 1581 (11th Cir.1985). The offense of attempted monopolization requires specific intent on the defendant’s part to bring about a monopoly and a dangerous probability of success. Quality Foods v. Latin Am. Agribusiness Dev. Corp., 711 F.2d 989, 996 (11th Cir.1983). Furthermore, like the monopolization offense itself, the attempt must happen in a defined relevant market. Id. The relevant market is defined by both a product and a geographic dimension. Spectrofuge Corp. v. Beckman Instruments, Inc., 575 F.2d 256, 276 (5th Cir.1978), cert. denied, 440 U.S. 939, 99 S.Ct. 1289, 59 L.Ed.2d 499 (1979); Heatransfer Corp. v. Volkswagenwerk, A. G., 553 F.2d 964, 980 (5th Cir.1977). “The offense of [actual] monopoly under § 2 of the Sherman Act has two elements: (1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superi- or product, business acumen, or historic accident.” United States v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966). The first element, monopoly power, requires a showing that the Defendant has the power to control prices in or to exclude competition from the relevant market. United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 391, 76 S.Ct. 994, 100 L.Ed. 1264 (1956). Monopoly power, de fined as “the power to control price or exclude competition,” is measured with" }, { "docid": "8403762", "title": "", "text": "facts that would entitle it to relief Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). When ruling on a motion to dismiss, a court must view the complaint in the light most favorable to the plaintiff and accept the plaintiffs well-pleaded facts as true. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); St Joseph’s Hosp., Inc. v. Hosp. Corp. of America, 795 F.2d 948 (11th Cir.1986). A. The Antitrust Claims 1. Attempted Monopolization under Sherman Act § 2 Section 2 of the Sherman Act makes it illegal to “monopolize, or attempt to monopolize” a product market. Plaintiff alleges that Defendants have violated Sherman Act § 2 by attempting to monopolize the markets for cigars and for non-Cuban premium cigars. Defendants contend that the Court should dismiss this claim because Plaintiff has not alleged that Defendants hold at least 50% of the market share. Because the Court agrees with Defendants and finds that there is no dangerous probability of monopoly power, the claim is dismissed. To prove its attempted monopolization claim, Plaintiff must show: “(1) that the defendant has engaged in predatory or anticompetitive conduct with (2) a specific intent to monopolize, and (3) a dangerous probability of achieving monopoly power.” Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456, 113 S.Ct. 884, 122 L.Ed.2d 247 (1993); Technical Res. Servs., Inc. v. Dornier Med. Sys., Inc., 134 F.3d 1458, 1466 (11th Cir.1998); U.S. Anchor Mfg., Inc. v. Rule Indus., Inc., 7 F.3d 986, 993 (11th Cir.1993). As did the U.S. Anchor court, this Court considers the factors for attempted monopolization in reverse order, beginning with dangerous probability of monopoly. U.S. Anchor. 7 F.3d at 993. Whether Defendants have a dangerous probability of monopoly involves quantifying the degree of their power in the relevant market. Technical Res., 134 F.3d at 1466; U.S. Anchor, 7 F.3d at 994. The Court must therefore consider the issue in two steps, by first defining the relevant market and then measuring the Defendants’ market power. U.S. Anchor, 7 F.3d at 994. a. Relevant Market “Defining a relevant" }, { "docid": "19734189", "title": "", "text": "the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historical accident.” United States v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966). “In economic terms, ‘monopoly power is the power to raise prices well above competitive levels before customers will turn elsewhere.’ ” Mylan, 62 F.Supp.2d at 54 (quoting Town of Concord v. Boston Edison Co., 915 F.2d 17, 31 (1st Cir.1990)). To allege attempted monopolization, a plaintiff must plead “(1) predatory or anticompetitive conduct, (2) with specific intent to monopolize, (3) creating a dangerous probability of monopoly power.” Ideal Elec. Sec. Co. v. Scientech, Inc., Civil Action No. 97-2098, 1998 U.S. Dist. LEXIS 11484, at *20 (D.D.C. July 8, 1998) (citing Dial A Car, Inc. v. Transp., Inc., 884 F.Supp. 584, 589 (D.D.C.1995)). Finally, to state a claim for conspiracy to monopolize, a plaintiff must make factual allegations demonstrating “(1) the existence of a combination or conspiracy to monopolize; (2) overt acts done in furtherance of the combination or conspiracy; (3) an effect upon an appreciable amount of interstate commerce; and (4) a specific intent to monopolize a designated segment of com merce.” Genetic Sys. Corp. v. Abbott Labs., 691 F.Supp. 407, 420 (D.D.C.1988). 1. Actual Monopolization Plaintiffs have failed to state a claim that defendants possess monopoly power. Monopolization and attempted monopolization claims must address the unilateral actions of a single firm. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 454, 113 S.Ct. 884, 122 L.Ed.2d 247 (1993) (noting that § 2 of the Sherman Act “addresses the actions of single firms that monopolize or attempt to monopolize”) (emphasis added); Copperweld Corp. v. Indep. Tube Corp., 467 U.S. 752, 767, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984) (concluding that “[t]he conduct of a single firm is governed by § 2 alone” unless under conspiracy to monopolize). Here, plaintiffs do not allege that any one defendant unilaterally acted to monopolize or attempted to monopolize. Plaintiffs have alleged only" }, { "docid": "20860731", "title": "", "text": "products, or allege facts relating to cross-elasticity of demand”); A & E Prods. Group L.P. v. The Accessory Corp., 00 Civ. 7271(LMM), 2001 WL 1568238, at *2 (S.D.N.Y. Dec. 7, 2001) (court stated that plaintiff should allege (1) “all products reasonably interchangeable, where there is cross-elasticity of demand”; and (2) “products [that] can be, effectively substituted for the product allegedly being monopolized”; and explain “why the market alleged is a relevant, economically significant market, that is unique”). Without a relevant market definition, the Court cannot begin to assess the allegedly anticompetitive conduct. Market power (or monopoly power) is “the power to control prices or exclude competition.” United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 389-91, 76 S.Ct. 994, 100 L.Ed. 1264 (1956). “Monopoly power can be demonstrated directly by showing the power to set prices or exclude competition, or indirectly, by showing defendant’s large' percentage of market share.” All Star Carts and Vehicles, 887 F.Supp.2d at 453. Viatek states only that Radiancy has a “very substantial market share.” Counterclaim ¶ 47/ This is a conclusory statement and does not given the Court an adequate fac tual basis upon which to determine that there is a “dangerous probability” that Ra-diancy will achieve market power. In addition to failing to show antitrust standing, allege a relevant market, or that there is a dangerous probability that Radiancy will obtain market power, Viatek cannot sustain its claims that Radiancy engaged in anticompetitive or predatory conduct on either a Walker Process or a shám litigation theory. iii. Theories of Anticompetitive Conduct “A patentee who brings an infringement suit may be subject to antitrust liability for the anti-competitive effects of that suit if the alleged infringer (the antitrust plaintiff) proves (1) that the asserted patent was obtained through knowing and willful fraud within the meaning of Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., ... or (2) that the infringement suit was ‘a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor.’” Nobelpharma AB v. Implant" }, { "docid": "11262875", "title": "", "text": "claim cannot be brought as a matter of law on the basis of an allegation of anti-competitive conduct that happens to be “intertwined” with obligations established by the 1996 Act. At the same time, we agree with Goldwasser that merely pleading violations of the 1996 Act alone will not suffice to plead Sherman Act violations. Thus, a claim that a defendant failed to live up to its contractual obligations under an agreement made pursuant to the 1996 Act in and of itself will be insufficient to establish an antitrust violation. However, if a plaintiff also pleads facts that, if true, tend to show an anticompetitive purpose to create or maintain a monopoly, then that plaintiff has pleaded an antitrust violation. Because we believe that the 1996 Act does not preempt claims under the Sherman Act as a matter of law, we turn to the question of whether Covad has pleaded a valid antitrust claim. B. Does Covad’s Complaint Sufficiently Allege a Violation of the Sherman Act? Establishing a Section 2 monopolization violation requires proof of two elements: “(1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superi- or product, business acumen, or historic accident.” United States v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966); accord Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 481-83, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992). Monopoly power is defined as “the power to control prices or exclude competition.” United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 391, 76 S.Ct. 994, 100 L.Ed. 1264 (1956). A firm that does not achieve monopoly power may nonetheless violate Section 2 through “attempted monopolization.” Proving attempted monopolization requires a showing of: (1) anticompetitive or exclusionary conduct; (2) with specific intent to monopolize; and (3) a dangerous probability of achieving monopoly power. See Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456, 113 S.Ct. 884, 122 L.Ed.2d 247 (1993). Anticompetitive conduct is “the" }, { "docid": "21653260", "title": "", "text": "metropolitan area by engaging in anticompetitive conduct such as predatory pricing, tying, and preventing its competitors from using radio for promotions. Section 2 of the Sherman Act makes it unlawful for a firm to “monopolize.” 15 U.S.C.A. § 2 (West 1997 & Supp. 2003). In order to prove monopolization, a plaintiff must show (1) defendant’s possession of monopoly power in the relevant market, and (2) the willful acquisition of monopoly power, as opposed to growth as a result of a superior product, business acumen, or historic accident. Reazin, 899 F.2d at 973; United States v. Grinnell Corp., 384 U.S. 563, 570-571, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966). While concerted conduct under section 1 of the Sherman Act is subject to sanction if it merely restrains trade, unilateral conduct under section 2 is subject to sanction only if it actually monopolizes. Alaska Airlines, Inc. v. United Airlines, Inc., 948 F.2d 536, 541 (9th Cir.1991). As stated earlier, in order to prove a monopolization claim, plaintiff must first define the relevant market. NIPP has set forth sufficient evidence for a jury to conclude that the relevant market for purposes of NIPP’s monopolization and attempted monopolization claims is the market for rock concerts. Second, in proving a monopolization claim, plaintiff must demonstrate that the defendant has monopoly power in the relevant market. While merely possessing monopoly power is not itself an antitrust violation, it is a necessary element of a monopolization charge. United States v. Microsoft Corp., 253 F.3d 34, 51 (D.C.Cir.2001). Monopoly power under section 2 of the Sherman Act requires something greater than market power under section 1. Eastman Kodak, 504 U.S. at 481, 112 S.Ct. at 2090 (citations omitted). Proof of monopoly power requires a showing of the power both to control prices and to exclude competition. United States v. E.I. du Pont Nemours & Co., 351 U.S. 377, 391, 76 S.Ct. 994, 100 L.Ed. 1264 (1956); Tarabishi, 951 F.2d at 1567. Monopoly power may be inferred from a firm’s possession of a dominant share of the relevant market, which is protected by entry barriers. Microsoft, 253 F.3d at" }, { "docid": "17407540", "title": "", "text": "allege “(1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.” PepsiCo, Inc. v. Cocar-Cola Co., 315 F.3d 101, 105 (2d Cir.2002) (per curiam) (quoting United States v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966)). In addition, Plaintiffs must also show antitrust injury in order to establish standing to assert a section 2 claim. Antitrust injury is an injury that is “of the type the antitrust laws were intended to prevent and that flows from that which makes defendants’ acts unlawful.” Atl. Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 334, 110 S.Ct. 1884, 109 L.Ed.2d 333 (1990) (quoting Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977)); see also Port Dock & Stone.Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 122 (2d Cir.2007). A. Possession of Monopoly Power There are two ways a plaintiff can show the possession of monopoly power: (1) through direct evidence of anticompetitive effects or (2) by defining a relevant market and showing defendants’ excess market share. PepsiCo, 315 F.3d at 107; see also Toys “R” Us, Inc. v. FTC, 221 F.3d 928, 937 (7th Cir.2000). 1. Direct Evidence of Monopoly Power “The pertinent inquiry in a monopolization claim ... is whether the defendant has engaged in improper conduct that has or is likely to' have the effect of controlling prices or excluding competition, thus creating or maintaining market power.” PepsiCo, 315 F.3d at 108; United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 391, 76 S.Ct. 994, 100 L.Ed. 1264 (1956). Monopoly power “may be proven directly by evidence of the control of prices or the exclusion of competition^]” Tops Mkts., Inc. v. Quality Mkts., Inc., 142 F.3d 90, 98 (2d Cir.1998); According to Plaintiffs, one need look no further for direct evidence of the ability to control prices than the market’s abrupt shift from backwardation to" }, { "docid": "12888055", "title": "", "text": "Conspiracy to Monopolize Section 2 of the Sherman Act makes it unlawful to “monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations.” 15 U.S.C. § 2. In order to state a claim for an attempt to monopolize and/or conspiracy to monopolize in violation of this section, Intellective must allege (1) predatory or anticompetitive conduct; (2) specific intent to monopolize; and (3) a dangerous probability of achieving monopoly power. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456, 113 S.Ct. 884, 122 L.Ed.2d 247 (1993); see also Volvo North America Corp. v. Men’s Intemational Professional Tennis Council, 857 F.2d 55, 73-74 (2d Cir.1988). To determine whether there is a dangerous probability of monopolization, courts consider “ ‘the defendant’s ability to lessen or destroy competition’ ” in the relevant market. Spectrum Sports, 506 U.S. at 456, 113 S.Ct. 884 (quoting Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 177, 86 S.Ct. 347, 15 L.Ed.2d 247 (1965)). Here, Intellective has alleged the necessary elements of an unlawful attempt and/or conspiracy to monopolize, at least as to the Insurance Company Defendants. Intellective alleges that, by requiring companies participating in the study to sign the restrictive Letter Agreement giving the Working Group exclusive and permanent control over historical and current data, the Working Group has engaged in anticompetitive conduct. See Compl. ¶¶ 18-19, 30. Intellective also alleges that the Working Group acted with specific intent to monopolize. See Compl. ¶ 25. Finally, Intellective alleges facts showing that there was a dangerous probability that the Working Group would achieve monopoly power by alleging that the Working Group had actually achieved monopoly power. See Compl. ¶¶ 19, 20. In-tellective also alleges that the Working Group was likely to be able to lessen or destroy competition: the Working Group companies hold over 15% of the assets of the entire industry; the Working Group companies hold over 20% of the total managed invested assets of the major insurance companies; and they" } ]

[ { "docid": "5721739", "title": "", "text": "Manufacturer’s Hanover Trust v. Ward (In re Ward), 857 F.2d 1082, 1083 (6th Cir.1988). The focus in the present case is on the first two elements -of the McLaren test: material misrepresentation and intent to defraud. Whether a debtor possessed an intent to defraud a creditor within the scope of § 523(a)(2)(A) is measured by a subjective standard, see Field v. Mans, 516 U.S. 59, 70-72, 116 S.Ct. 437, 444, 133 L.Ed.2d 351 (1995); thus, we must determine whether Rembert had a subjective fraudulent intent, based on her representations to Citibank and AT & T. In so determining, we first must consider the nature of those representations. The use of a credit card represents either an actual or implied intent to repay the debt incurred. See, e.g., Chevy Chase Bank, FSB v. Briese (In re Briese), 196 B.R. 440, 449-50 (Bankr.W.D.Wis.1996); Chase Manhattan Bank v. Murphy (In re Murphy ), 190 B.R. 327, 332 (Bankr.N.D.Ill.1995); The GM Card v. Cox (In re Cox), 182 B.R. 626, 628 (Bankr.D.Mass.1995). Subject to more debate, however, is the issue of whether the debtor’s representation includes a representation that she has an ability to repay the debt. Compare Anastas v. American Savings Bank (In re Anastas), 94 F.3d 1280, 1287 (9th Cir.1996) (the representation made by the card holder in a credit card transaction is not that he has an ability to repay the debt), and AT & T Universal Card Services Corp. v. Feld (In re Feld), 203 B.R. 360, 367 (Bankr.E.D.Pa.1996) (“We therefore reject those cases that measure a debtor’s intention to repay by her ability to pay.”), with Mercantile Bank v. Hoyle (In re Hoyle), 183 B.R. 635, 638 (Bankr.D.Kan.1995) (debtor implied that he had ability to repay when he took out cash advances) and Bank One Columbus, N.A. v.. McDonald (In re McDonald), 177 B.R. 212, 216 (B.ankr.E.D.Pa.1994) (the act of using a credit card carries the implied representation that the debtor has the ability to repay the debt). We believe that “the representation made by the cardholder in a credit card transaction is not that he has an ability" } ]

[ { "docid": "18679061", "title": "", "text": "Bankruptcy Act] should not be construed to afford additional protection for those who unwisely permit or encourage debtors to exceed their credit limits. Bearing in mind these considerations, we hold that the voluntary assumption of risk on the part of a bank continues until it is clearly shown that the bank unequivocally and unconditionally revoked the right of the cardholder to further possession and use of the card, and until the cardholder is aware of this revocation. ... The Roddenberry court proceeded to conclude that the debtors’ credit-card balance of over $5,200, accumulated on an account with a $1,000 credit limit, was non-dis-ehargeable only insofar as charges were made after revocation of the cards was communicated to the debtors. Id. at 928-29, 933. Roddenberry has been expressly followed by several courts which were not bound to its holding. See Comerica Bank-Midwest v. Kouloumbris, 69 B.R. 229, 230-31 (N.D.Ill.1986) (debtor ran up debts of about $4,950 on pre-approved credit line of $5,000 in about three months; discharge granted despite that evidence of debtors’ intention to repay was found “equivocal”); and In re Shrader, 55 B.R. 608, 611-12 (Bankr.W.D.Va.1985) (debts discharged, although court also finds that debtors intended to pay relatively modest balance). Roddenberry’s reasoning has been accepted by several courts with certain modifications. One is that the crucial period when nondischargeability should attach should be when the debtor knows that the credit limit has been exceeded as opposed to when revocation is communicated to the debtor. See Faulk, supra, 69 B.R. at 756. Another is that a showing of an intent of the debtor not to repay should also result in nondischargeability. See Carpenter, supra, 53 B.R. at 731-32; and In re Wilson, 32 B.R. 772, 776-77 (Bankr. E.D.Tenn.1983). As we indicate at pages 761-62 infra, we also accept the general reasoning of Roddenberry that credit-card issuers assume a degree of risk, but we believe that certain revisions to its conclusions similar to those suggested by Faulk, Carpenter, and Wilson, are also appropriate. Therefore, the proof of the fourth and fifth elements to establish liability under § 523(a)(2)(A) — creditor reliance" }, { "docid": "22343997", "title": "", "text": "Melancon (In re Melan-con), 223 B.R. 300, 307 & n. 4 (Bankr. M.D.La.1998) (same standard should apply). . See, e.g., Household Credit Servs., Inc. v. Ettell (In re Ettell), 188 F.3d 1141, 1144 (9th Cir.1999); Rembert v. AT&T Universal Card Servs., Inc. (In re Rembert), 141 F.3d 277, 280-81 (6th Cir.), cert. denied, 525 U.S. 978, 119 S.Ct. 438, 142 L.Ed.2d 357 (1998); Universal Bank, N.A. v. Grause (In re Grause), 245 B.R. 95, 99 (8th Cir.BAP 2000). . See, e.g., First Nat'l Bank of Mobile v. Roddenberry, 701 F.2d 927, 930 n. 3 (11th Cir. 1983) (citing Zaretsky, The Fraud Exception to Discharge Under the New Bankruptcy Code, 53 Am. Bankr.L.J. 253, 257 (1979)); Reid, 237 B.R. at 586. . See, e.g., Melancon, 223 B.R. at 312-15 (Da-vison-Paxon obsolete due to addition of actual fraud and Field’s adoption of common-law interpretation); AT&T Universal Card Servs. v. Samani (In re Samani), 192 B.R. 877, 879-80 (Bankr.S.D.Tex.1996) (allowing creditor to establish fraud based on card-use representation of intent and ability to pay would directly contravene Davison-Paxon); Louisiana Nat'l Bank of Baton Rouge v. Talbot (In re Talbot), 16 B.R. 50, 54 (Bankr.M.D.La.1981) (bound by Davison-Paxon); Ranier Bank v. Poteet (In re Poteet), 12 B.R. 565, 568 (Bankr.N.D.Tex.1981) (Davison-Paxon not relevant to card-use). . See, e.g., First Card Servs., Inc. v. Flynn (In re Flynn), 184 B.R. 8, 9 (Bankr.E.D.N.Y.1995); Citibank (S.D.), N.A. v. Rodriguez (In re Rodriguez), 138 B.R. 112, 114 (Bankr.S.D.Fla. 1992); Poteet, 12 B.R. at 567. . See, e.g., Sears, Roebuck & Co. v. Hernandez (In re Hernandez), 208 B.R. 872, 880 (Bankr.W.D.Tex.1997); Chase Manhattan Bank, N.A. v. Ford (Matter of Ford), 186 B.R. 312, 317 (Bankr.N.D.Ga.1995). . See, e.g., Chase Manhattan Bank (U.S.A.) N.A. v. Carpenter (Matter of Carpenter), 53 B.R. 724, 728 (Bankr.N.D.Ga.1985). . See, e.g., Rembert, 141 F.3d at 281; Anastas v. American Sav. Bank (In re Anastas), 94 F.3d 1280, 1285 (9th Cir. 1996); Citibank (S.D.), N.A. v. Senty (In re Senty), 42 B.R. 456, 459 (Bankr.S.D.N.Y.1984). . See, e.g., Rembert, 141 F.3d at 281; Anas-tas, 94 F.3d at 1285. . See Chevy Chase Bank," }, { "docid": "16298600", "title": "", "text": "the creditor relied on the representation; and 5) the creditor suffered an injury or loss. E.g., Rembert v. AT & T (In re Rembert), 141 F.3d 277, 280-81 (6th Cir.1998). See Snow, supra, at 67-68. One difficulty with application of the misrepresentation/reliance test is that in a credit card situation, a debtor makes no express representation to the issuer of the card at the time of the card’s use. The debtor is usually dealing with a third party (salesperson), or no person at all (cash machine); rarely if ever the issuer. Murphy, 190 B.R. at 331; Bates, supra, at 29. In order to circumvent the problem of the lack of face-to-face contact and any actual representation being made, courts have developed the legal fiction of an “implied representation” for credit card transactions. Snow, supra, at 74. Early decisions held that the use of a credit card carried implied representations of both the ability and intent to repay the issuer. Bank One Columbus, N.A. v. McDonald (In re McDonald), 177 B.R. 212, 216 (Bankr.E.D.Pa.1994); H.C. Prange Co. v. Schnore (In re Schnore), 13 B.R. 249, 254 (Bankr.W.D.Wis.1981). However, the implied representation of the ability to repay was eliminated in light of the language of Bankruptcy Code § 523(a)(2)(A) making debts nondischargeable “other than a statement respecting the debtor’s or an insider’s financial condition.” See, e.g., Anastas v. Am. Savings Bank (In re Anastas), 94 F.3d 1280, 1285 (9th Cir.1996) (emphasizing the implied representation is only of the intent to repay, not ability to repay). Currently, the “implied representation” analysis applies the fiction that with each use of the credit card, the debtor represents an intent to repay. Id.; AT & T Universal Card Services v. Mercer, 246 F.3d 391, 406 (5th Cir.2001); Rembert, 141 F.3d at 281; AT & T Universal Card Services v. Ellingsworth (In re Ellings-worth), 212 B.R. 326, 334 (Bankr.W.D.Mo.1997). Some courts are critical of the “implied representation” theory. AT & T Universal Card Services v. Alvi (In re Alvi), 191 B.R. 724, 731-32 (Bankr.N.D.Ill.1996); Mercer, 246 F.3d at 425-29 (dissenting opinion). Three arguments are made against application" }, { "docid": "22344002", "title": "", "text": "B.R. 863, 866 (N.D.Ill.1996) (multi-factor \"objective” test inconsistent with common-law \"subjective” standard); Alvi, 191 B.R. at 733 (factors do not address critical subjective intent). . See also, e.g., Chase Manhattan Bank v. Murphy (In re Mwphy), 190 B.R. 327, 332 n. 6 (Bankr.N.D.Ill.1995) (intent to pay not synonymous with ability to pay; \"[ajlone, financial inability to repay does not establish fraudulent intent”). . See, e.g., Ettell, 188 F.3d at 1145; Rembert, 141 F.3d at 282; Hashemi, 104 F.3d at 1125; Eashai, 87 F.3d at 1090. Cf. Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 668, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989) (\"a plaintiff is entitled to prove the defendant’s state of mind through circumstantial evidence”). . See, e.g., Rembert, 141 F.3d at 279, 282 (debtor \"believed” and \"thought” would win enough to pay card-debt; subjective intent to pay present where debtor took second mortgage on home, used proceeds to pay debt, and made substantial payments on it while continuing to gamble and lose); Anastas, 94 F.3d at 1287 (although unlikely debtor would win in order to pay cash advances that financed gambling, record supported good faith intent, where debt incurred over six-month period during which monthly payments made, issuer contacted to try to make alternative payment arrangements, and debtor testified always intended to pay, but gambling addiction led to unexpected financial circumstances); Star Bank, N.A. v. Steams (In re Steams), 241 B.R. 611, 624 (Bankr.D.Minn.1999) (debtor's persistent belief in salvation of \"big win” was fatuous, but genuine); Universal Card Servs. v. Pickett (In re Pickett), 234 B.R. 748, 757 (Bankr.W.D.Mo.1999) (intent to pay not credible when debtor lost $100,000 in one year); Boyd Gaming Corp. v. Hall (In re Hall), 228 B.R. 483, 490 (Bankr.M.D.Ga.1998) (intent to pay where debtor honestly, though unreasonably, believed would get lucky and be able to pay debts, although had lost for over 15 years). . See also, e.g., Sears, Roebuck & Co. v. Hom-schek (In re Homschek), 216 B.R. 748, 753 (Bankr.M.D.Pa.1998) (card-use “for the sole purpose of obtaining” loan); Feld, 203 B.R. at 372 (by card-use, debtor intended to induce issuer to" }, { "docid": "19150044", "title": "", "text": "In re Mullet, 817 F.2d 677, 680 (10th Cir.1987); In re Bixel, 215 B.R. 772 (Bankr.S.D.Cal.1997). This case involves the Debtor’s use of a credit card well over a year after the credit card company issued it to him. Typically such credit is extended to a borrower without any direct face to face contact. He uses the credit card to purchase goods from a merchant or to obtain a cash advance. The transaction is instantaneous. Consequently, the nature of the representation by the Defendant and the reliance by the Plaintiff must be analyzed slightly differently than the traditional common law misrepresentation case presented under section 523(a)(2)(A). See Field v. Mans, 516 U.S. at 68-70, 116 S.Ct. at 443 (“the [substantive terms in section 523(a)(2)(A)] refer to common-law torts, and the [substantive terms in section 523(a)(2)(B)] do not.”). The majority of courts have approached these cases by holding that the use of a credit card implies a representation that the cardholder has the ability and intends to repay the debt. In re Eashai, 87 F.3d 1082, 1087 (9th Cir.1996); In re Anastas, 94 F.3d 1280, 1285 (9th Cir.1996); In re Hinman, 120 B.R. 1018 (Bankr.D.N.D.1990). The Tenth Circuit, in an unpublished decision predating the Ninth Circuit opinions, signaled its endorsement of the majority view. Signet Bank v. Keyes (In re Keyes) 959 F.2d 245, 1992 WL 66723 at p. 3 (10th Cir.1992)(Unpublished Disposition). There is some split of authority as to whether the implied representation is only of the intent, but not the ability, to repay. Recently, the Ninth Circuit “emphasize[d] that the representation made by the cardholder in a credit card transaction is not that he has an ability to repay the debt; it is that he has an intention to repay. Indeed, section 523(a)(2) expressly prohibits using a non-written representation of a debt- or’s financial condition as a basis for fraud.” In re Anastas, 94 F.3d at 1285; In re Bixel, 215 B.R. at p. 775-76 citing In re Anastas. For purposes of trial, it is not enough for the credit card issuer to simply rest on the implied" }, { "docid": "7490418", "title": "", "text": "set forth sufficient specific evidence of a misrepresentation by the Debtor upon which it relied. AT & T asserts that the Debtor may be charged with impliedly representing, each time he used the Credit Card, that he had the intent and/or ability to repay the resulting indebtedness. There is much support for the proposition that implicit in credit card usage is a representation by the user that he has the intent and/or financial ability, at some point in the future, to pay for the goods, services or cash obtained thereby. See, e.g., In re Anastas, 94 F.3d at 1285; In re Ward, 857 F.2d at 1085; In re Carrier, 181 B.R. at 747; In re Vermillion, 136 B.R. at 226-27; Citicorp Credit Services v. Hinman (In re Hinman), 120 B.R. 1018, 1021 (Bankr.D.N.D.1990). However, non-written representations respecting a debtor’s financial condition may not form the basis of a nondisehargeability lawsuit under § 523(a)(2)(A). See In re Anastas, 94 F.3d at 1285; Eugene Parks Law Corp. v. Kirsh (In re Kirsh), 973 F.2d 1454, 1457 (9th Cir.1992); Seepes v. Schwartz (In re Schwartz), 45 B.R. 354, 356-57 (S.D.N.Y.1985); Chemical Bank v. Sigrist (In re Sigrist), 163 B.R. 940, 947 (Bankr.W.D.N.Y.1994). Accordingly, for the purposes of determining dis-chargeability under § 523(A)(2)(a), it is a debtor’s intent and not ability to repay the incurred indebtedness which may be properly inferred from the use of a credit-card. See, e.g., In re Anastas, 94 F.3d at 1285 (“We emphasize that the representation made by the card holder in a credit card transaction is not that he has an ability to repay the debt; it is that he has an intention to repay.”); Sears Roebuck and Co. v. Faulk (In re Faulk), 69 B.R. 743, 755 (Bankr.N.D.Ind.1986) (“[U]se of the credit card is a statement of a present intention to pay at the time of purchase rather than an unwritten representation of the ability to pay or financial condition.”); In re Carpenter, 53 B.R. at 730 (holding use of a charge card implies present intention and not present ability to pay). AT & T is correct" }, { "docid": "14907878", "title": "", "text": "FCC Nat’l Bank v. Bartlett (In re Bartlett), 128 B.R. 775, 779-80 (Bankr.W.D.Mo.1991); First Deposit Credit Services Corporation v. Preece (In re Preece), 125 B.R. 474, 477 (Bankr.W.D.Tex.1991). Other courts have held that the credit card company assumes the risk of nonpayment with the use of the card, unless the issuer has instructed the debtor to stop using its card. First Nat’l Bank of Mobile v. Roddenberry (In re Roddenberry), 701 F.2d 927, 932-33 (11th Cir.1983). The bankruptcy courts in this District have, more recently, held that, by using a credit card, a debtor makes the express representation that he or she has both the intent and the ability to repay. See Universal Card Services v. Miller (In re Miller), 228 B.R. 287, 240 (Bankr.W.D.Mo.1998), AT&T Universal Card Services v. Ellingsworth (In re Ellingsworth), 212 B.R. 326, 334 (Bankr.W.D.Mo.1997). Likewise, it is this Court’s belief that, by using a credit card, the debtor is making a representation to the credit card issuer that he or she has both the intent and the ability to repay the debt in accordance with the requirements of the credit card agreement. At the very least, the debtor, by using his credit card to obtain a cash advance or make a purchase, is expressly telling the credit card issuer that he or she intends to repay the amount borrowed and has the ability to repay the amounts on the terms required by the issuer, whether that repayment is in the form of minimum monthly payments required by the credit card agreement or in some different or larger amounts. Furthermore, it is this Court’s view that the debtor’s reckless disregard for the truth as to whether he or she has the intent to repay a credit card debt satisfies the element of misrepresentation that the debtor has made an intentionally false representation in obtaining the credit or, in this case, the cash advance. See Anastas v. American Savings Bank (In re Anastas), 94 F.3d 1280, 1286 (9th Cir.1996). If the court finds that a debtor knew he was unable to repay or incurred the debt with" }, { "docid": "14971434", "title": "", "text": "with his permission to obtain a cash advance she or Kukuk made a representation that they had both a present intention and ability to repay the indebtedness created thereby. The issue herein is whether a “false representation” as required under § 523(a)(2)(A) may be based on such an implied representation. The Tenth Circuit has not addressed this issue in a decision with precedential authority; but see Signet Bank v. Keyes, 959 F.2d 245, 1992 WL 66723 (10th Cir.1992) (table) (in an unpublished decision with no precedential authority, the court held that the debtors’ use of credit cards to charge purchases and to obtain cash advances implied a representation by the debtors to the bank that they had the ability and intention to pay the obligations); and lower courts in the Tenth Circuit, as well as numerous other courts, are divided as to whether an implied representation of an intent and ability to repay a credit card debt is sufficient to show that the debtor made a false representation under § 523(a)(2)(A). Compare Rembert v. AT & T Universal Card Servs., Inc. (In re Rembert), 141 F.3d 277 (6th Cir.1998) (fraud under § 523(a)(2)(A) may not be based on an implied representation of ability to repay, only of intent to repay; fraudulent intent is based on the totality of the circumstances), cert. denied, 67 U.S.L.W. 3169, — U.S. -, 119 S.Ct. 438, - L.Ed.2d - (1998) (No. 98-352); accord American Express Travel Related Servs. Co. v. Hashemi (In re Hashemi), 104 F.3d 1122 (9th Cir.), cert. denied, — U.S. -, 117 S.Ct. 1824, 137 L.Ed.2d 1031 (1997); Anastas v. American Sav. Bank (In re Anastas), 94 F.3d 1280 (9th Cir.1996); Bank of New York v. Le (In re Le), 222 B.R. 366 (Bankr.W.D.Okla.1998); Bank One Co lumbus, N.A. v. Schad (In re Kountry Korner Store), 221 B.R. 265 (Bankr.N.D.Okla.1998); AT & T v. Herrig (In re Herrig), 217 B.R. 891 (Bankr.N.D.Okla.1998); Household Credit Servs. v. Melton (In re Melton), 217 B.R. 869 (Bankr.D.Colo.1998); Norwest Bank v. Orndorff (In re Orndorff), 162 B.R. 886 (Bankr.N.D.Okla.1994) (citing cases and law review articles); First" }, { "docid": "18895393", "title": "", "text": "credit card charges made after the cardholder/debtor learns of the issuer’s revocation of the card may be non-dischargeable. This theory is typically referred to as the “assumption of the risk” theory. First Nat’l Bank of Mobile v. Roddenberry, 701 F.2d 927 (11th Cir.1983); In re Carpenter, 53 B.R. 724, 728 (Bankr. N.D.Ga.1985). Dougherty at 655-56. Dougherty rejected the “implied representation” theory because all five elements of a fraud claim must be affirmatively proved in order to prevent a credit card creditor’s unfair advantage over other creditors and to foster bankruptcy’s fresh start by strict construction of exceptions to discharge in favor of the debtor. Id. at 656. Dougherty also rejected the “assumption of the risk” theory because it would give license to dishonest debtors to evade payment of fraudulently incurred debts by receiving a discharge in bankruptcy. Id. at 656-57. In Dougherty, we distinguished between the representation of intent to repay and ability to repay. The burden is on the card issuer to prove that the borrower intended to incur the debt without repaying it. To that end, Dougherty cited with approval a list of nonexclusive factors enunciated in In re Faulk, 69 B.R. 743, 757 (Bankr.N.D.Ind.1986), for courts to consider when determining whether a credit card debtor committed actual fraud through use of a credit card. Dougherty does not stand for the proposition that these factors create a type of “constructive fraud” that is nondischargeable, as implied by In re Cirineo, 110 B.R. 754 (Bankr.E.D.Pa.1990). The factors do not constitute a singular formula; they were stated to provide a guide for evidence of an inferential nature which may be considered by the court in evaluating the actual intent of the debtor at the time the card was used. Needless to say, because the debtor’s primary line of defense is that he did not intend to defraud, and because debtors will seldom admit of an intent to defraud, proof of such intent is a major element in § 523(a)(2) litigation. II Credit fraud generally involves a borrower’s contemporaneous misrepresentation of his ability to repay the debt upon which representation the" }, { "docid": "22344015", "title": "", "text": "n. 10 (Bankr. N.D.Ala.1998) (suggesting Roddenberry assumption of risk doctrine “simply a variation of the common law principles of consent and estoppel, which may preclude a recovery for fraud”, irrespective of justifiable reliance); Doi}iinion Bankshares Servs. v. Shrader (In re Shrader), 55 B.R. 608, 612 (Bankr.W.D.Va.1985) (Roddenberry sound because burden properly placed on issuer to effectively monitor accounts); cf. First Nat’l Bank of Atlanta v. Robinson (Matter of Robinson), 55 B.R. 839, 847-48 (Bankr.S.D.Ind.1985) (issuer assumed risk of nonpayment to extent of charges up to credit limit when mailed unsolicited, pre-ap-proved application without inquiring as to financial condition or ability to pay). . See, e.g., Ford, 186 B.R. at 318 n. 8 (\"many courts have criticized [Roddenbeny’s] approach as going to an extreme, tipping the scales so far in favor of debtors that very few credit card debts will qualify as nondischargeable”); Cox, 182 B.R. at 634 (theory “too judgmental to support a court decision purporting to apply a statute”); Sears Roebuck & Co. v. Faulk (In re Faulk), 69 B.R. 743, 755-56 (Bankr.N.D.Ind.1986) (Roddenberry automatic revocation rule rejected \"as contrary to the clear language of § 523(a)(2)(A)”). . See, e.g., AT&T Universal Card Servs. Carp, v. Reach (In re Reach), 225 B.R. 236, 239 (Bankr.N.D.Ala.1997); Hunter, 210 B.R. at 215; American Express Travel Related Seivs. Co., Inc. v. Johnson (Matter of Johnson), 141 B.R. 473, 478 (Bankr.M.D.Ga.1992). . See, e.g., Feld, 203 B.R. at 366 n. 6 (fact that creditors anticipate loss does not mean \"they should be saddled with losses resulting from fraud”); Briese, 196 B.R. at 449 (creditor does not assume risk debtor is dishonest); J.C. Penney Co., Inc. v. Shanahan (In re Shan-ahan), 151 B.R. 44, 47 (Bankr.W.D.N.Y.1993) (issuer \"perhaps assumes the risk of the user's ignorance, mistake, naivete, gullibility, misfortune, accident, or other innocent failing or adversity, but [not of] user’s knowing and intentional use of the card to obtain goods without any realistic prospect of having the wherewithal to pay”). . See also Sanford Inst. for Sav. v. Gallo, 156 F.3d 71, 75 (1st Cir.1998) (rule that \"party may justifiably rely on a misrepresentation" }, { "docid": "6067127", "title": "", "text": "on the debtor’s state of mind when her promise to repay was made. .We disagree with those cases that find that credit card debtors represent an ability to pay. See e.g., Mercantile Bank v. Hoyle (In re Hoyle), 183 B.R. 635, 638 (Bankr.D.Kan.1995); Bank One Columbus, N.A. v. McDonald (In re McDonald), 177 B.R. 212, 216-217 (Bankr.E.D.Pa.1994); Chase Manhattan Bank v. Weiss (In re Weiss), 139 B.R. 928 (Bankr.D.S.D.1992); Household Card Services/Visa v. Vermillion (In re Vermillion), 136 B.R. 225, 226-27 (Bankr.W.D.Mo.1992). This view is reinforced by the terms of § 523(a)(2)(A) which expressly restrict courts from finding fraud on the basis of unwritten statements of a debtor's financial condition. See, e.g., Anastas, 94 F.3d at 1285; Cox, 182 B.R. at 630. Compare § 523(a)(2)(B). . We acknowledge that there may be circumstances where a debtor's professed intention to repay is so unrealistic as to cast doubt on her subjective intent. In such cases, objective evidence of futility may overlap with subjective intent. Cf. Carotin Corp. v. Miller, 886 F.2d 693, 701 (4th Cir.1989) (considering whether a bankruptcy filing was in bad faith). . We reject the view, expressed by the courts in Citibank South Dakota, N.A. v. Dougherty (In re Dougherty), 84 B.R. 653, 656 (9th Cir. BAP 1988) AT & T Universal Card Services v. Burdge (In re Burdge), 198 B.R. 773, 776 (9th Cir. BAP 1996) and Colonial National Bank USA v. Leventhal (In re Leventhal), 194 B.R. 26, 28 (Bankr.S.D.N.Y.1996), that we need not find reliance. In reaching that conclusion, the Leventhal court relies on In re Shanahan, 151 B.R. 44, 46 (Bankr.W.D.N.Y.1993), a pre-Field v. Mans decision, for the proposition that some fraudulent acts do not involve reliance upon a representation and \" 'slavish adherence' to the five elements of fraud ... was not required at common law.” Field v. Mans, however, construes actual fraud in the context of § 523(a)(2)(A) and states that the plaintiff must prove justifiable reliance. At most it reserves opinion on whether the standard for establishing reliance where the § 523(a)(2)(A) action is based on false representations is the same" }, { "docid": "5247023", "title": "", "text": "transactions, however, are not typical fraud cases due to the difficulty, if not impossibility, of applying the concepts of representation and reliance to situations where the card holder, in making use of the card presents it not to the bank issuer seeking section 523 relief but to a retail merchant who accepts it in faith that the issuing bank will pay him. Credit card cases involve an ongoing relationship between the holder and issuer with only infrequent inquiry being made concerning the status of the holder’s financial affairs. Recognizing this relationship, courts have come to modify the way in which the elements of section 523(a)(2)(A) proof are met in credit card situations. The element of representation is implied from the mere use of a bank card. The use of a bank or credit card is an implied representation to the issuer that the holder has both the intent and ability to pay the issuer for the charged purchases and advances. In re Cirineo, 110 B.R. 754, 758 (Bankr.E.D.Pa.1990); Matter of Stewart, 91 B.R. 489, 494 (Bankr.S.D.Iowa 1988); Comerica Bank-Midwest v. Kouloumbris, 69 B.R. 229, 230 (Bankr.N.D.Ill.1986); In re Barnacle, 44 B.R. 50, 53 (Bankr.D.Minn.1984). In the instant case this element is easily established by the mere fact that the Debtors used the three cards to make purchases. Proof that a credit card debtor knew the representations were false and that they were made with the intent and purpose of deceiving the issuer are more difficult to prove because, as with all fraud cases, there is an element of subjective intent to deceive. Rarely, if ever, will a debtor admit such was his intent. Such is the situation in the instant case. Courts are in agreement, however, that actual fraud i.e., an intent to deceive, may be inferred from objective factors suggesting that the debtor knew or should have known at the time of card use that he/she was insolvent and lacked the ability to repay. In re Pedrazzini, 644 F.2d 756 (9th Cir.1981); In re Dougherty, 84 B.R. 653 (9th Cir. B.A.P.1988); In re Faulk, 69 B.R. 743 (Bankr.N.D.Ind.1986). These" }, { "docid": "2165630", "title": "", "text": "because of the nature of a typical credit card transaction which involves no face-to-face contact with a lender. The decision to extend credit to a debtor is made at the beginning of the debtor-creditor relationship when a prospective debtor is approved for a credit card. Later, when the debtor uses the card, credit is extended after verification of the validity of the card and the holder’s pre-existing approved status by a third party merchant or bank who then looks to the credit card company for payment. Against this transactional reality, courts have attempted to measure the debtor’s representations and the creditor’s reliance thereon, and have fashioned various approaches to support non-dis-chargeability judgments in credit card cases. Clearly to give literal effect to the statute would be to except credit card transactions from the reach of § 523(a)(2)(A) since a debtor makes no actual representation to the creditor when using a card and a credit card issuer, not a direct party to the transaction whereby the credit is accessed, does not contemporaneously rely on any representation, even one implied. Feld, 203 B.R. at 365-66 (footnotes omitted). There are at least two (2) lines of authority regarding the scope of the representation a consumer impliedly makes by using a credit card. Some courts hold that the use of a credit card is an implied representation of an intention to repay the charges incurred. See In re Anastas, 94 F.3d 1280, 1285 (9th Cir.1996); LaBovick, 355 B.R. at 514; In re Johnson, 313 B.R. 119, 128 (Bankr.E.D.N.Y.2004). Other courts take a broader view, holding that, by using a credit card, a consumer represents that he or she has both the intent and ability to repay the credit card issuer. See, e.g., In re Wong, 207 B.R. 822, 827 (Bankr.E.D.Pa.1997); In re Flynn, 184 B.R. 8, 9 (Bankr.E.D.N.Y.1995); In re Carrier, 181 B.R. 742, 747 (Bankr.S.D.N.Y.1995) In re McDonald, 177 B.R. 212, 216 (Bankr.E.D.Pa.1994); In re Sharp, 144 B.R. 372, 374 (Bankr.S.D.Ohio 1992). This difference in approach is not insignificant and could alter the outcome of a dischargeability case under § 523(a)(2)(A), including, perhaps," }, { "docid": "1488697", "title": "", "text": "and rejects the implied representation theory that Plaintiffs complaint pleads. Accord, e.g., Citibank (South Dakota), N.A v. Brobsten (In re Brobsten), 2001 WL 34076352 (Bankr. C.D.Ill. Nov. 20, 2001); Bank of America, N.A. v. Way (In re Way), 260 B.R. 291 (Bankr.M.D.Fla.2000); Universal Bank, N.A. v. Kuntz (In re Kuntz), 249 B.R. 699 (Bankr.N.D.Tex.2000); AT & T Univ. Card Svcs. v. Alvi (In re Alvi), 191 B.R. 724 (Bankr.N.D.Ill.1996); Chase Manhattan Bank (U.S.A.), N.A. v. Carpenter (In re Carpenter), 53 B.R. 724, 728 (Bankr.N.D.Ga.1985). Even if use of a credit card could be considered to be a representation by a debtor of intent to repay, the debt is nondisehargeable under the false pretenses or false representation dischargeability exception only if the representation was knowingly false. To establish this element, the creditor must show that the debtor possessed an actual, subjective fraudulent intent. Field v. Mans, 516 U.S. 59, 67-68, 116 S.Ct. 437, 133 L.Ed.2d 351 (1995). As discussed below, this subjective intent is not established solely by the fact that an insolvent debtor used a credit card and did not have the ability to pay the debt. Moreover, even if the use of a credit card could be considered an implied representation of ability to pay, such a representation is not covered by § 523(a)(2)(A). Section 523(a)(2)(A) excludes “a statement respecting the debtor’s ... financial condition” from the type of false pretenses or false representations that give rise to a nondischargeable debt. Instead, nondischargeability based on misrepresentation of financial condition is governed by § 523(a)(2)(B), which requires that such representations be written. If the use of a card is an implied representation or statement of one’s ability to pay, it is necessarily an unwritten statement of one’s financial condition. As such, it cannot serve as a basis for nondischargeability under § 523(a)(2)(A). See, e.g., Bank of New York v. Le (In re Le), 222 B.R. 366, 370 (Bankr.W.D.Okla.1998); AT & T Univ. Card Svcs. Corp. v. Feld (In re Feld), 203 B.R. 360, 367 n. 10 (Bankr.E.D.Pa.1996); Citibank (South Dakota), N.A. v. Senty (In re Senty), 42 B.R. 456, 459" }, { "docid": "14971435", "title": "", "text": "& T Universal Card Servs., Inc. (In re Rembert), 141 F.3d 277 (6th Cir.1998) (fraud under § 523(a)(2)(A) may not be based on an implied representation of ability to repay, only of intent to repay; fraudulent intent is based on the totality of the circumstances), cert. denied, 67 U.S.L.W. 3169, — U.S. -, 119 S.Ct. 438, - L.Ed.2d - (1998) (No. 98-352); accord American Express Travel Related Servs. Co. v. Hashemi (In re Hashemi), 104 F.3d 1122 (9th Cir.), cert. denied, — U.S. -, 117 S.Ct. 1824, 137 L.Ed.2d 1031 (1997); Anastas v. American Sav. Bank (In re Anastas), 94 F.3d 1280 (9th Cir.1996); Bank of New York v. Le (In re Le), 222 B.R. 366 (Bankr.W.D.Okla.1998); Bank One Co lumbus, N.A. v. Schad (In re Kountry Korner Store), 221 B.R. 265 (Bankr.N.D.Okla.1998); AT & T v. Herrig (In re Herrig), 217 B.R. 891 (Bankr.N.D.Okla.1998); Household Credit Servs. v. Melton (In re Melton), 217 B.R. 869 (Bankr.D.Colo.1998); Norwest Bank v. Orndorff (In re Orndorff), 162 B.R. 886 (Bankr.N.D.Okla.1994) (citing cases and law review articles); First Card v. Leonard (In re Leonard), 158 B.R. 839 (Bankr.D.Colo.1993); with Mercantile Bank v. Hoyle (In re Hoyle), 183 B.R. 635 (Bankr.D.Kan.1995) (fraud under § 523(a)(2)(A) may be based on an implied representation of intent and ability to repay, but totality of the circumstances is considered in determining intent); accord Household Bank v. Touchard (In re Touchard), 121 B.R. 397 (Bankr.D.Utah 1990); The May Dep’t Stores Co. v. Kurtz (In re Kurtz), 110 B.R. 528 (Bankr.D.Colo.1990); and with Household Credit Servs., Inc. v. Peterson (In re Peterson), 182 B.R. 877 (Bankr.N.D.Okla. 1995) (court assumed that fraud under § 523(a)(2)(A) was based on an implied representation of intent and ability to repay); and with First Nat’l Bank v. Roddenberry, 701 F.2d 927 (11th Cir.1983) (only debt incurred after a debtor learns of the issuer’s revocation of his or her credit card are nondisehargeable under § 523(a)(2)(A)); see Chase Manhattan Bank (U.S.A.) N.A. v. Carpenter (In re Carpenter), 53 B.R. 724, 728 (Bankr.N.D.Ga.1985). Whether the bankruptcy court applied the correct legal standard under § 523(a)(2)(A) is subject" }, { "docid": "22343998", "title": "", "text": "Louisiana Nat'l Bank of Baton Rouge v. Talbot (In re Talbot), 16 B.R. 50, 54 (Bankr.M.D.La.1981) (bound by Davison-Paxon); Ranier Bank v. Poteet (In re Poteet), 12 B.R. 565, 568 (Bankr.N.D.Tex.1981) (Davison-Paxon not relevant to card-use). . See, e.g., First Card Servs., Inc. v. Flynn (In re Flynn), 184 B.R. 8, 9 (Bankr.E.D.N.Y.1995); Citibank (S.D.), N.A. v. Rodriguez (In re Rodriguez), 138 B.R. 112, 114 (Bankr.S.D.Fla. 1992); Poteet, 12 B.R. at 567. . See, e.g., Sears, Roebuck & Co. v. Hernandez (In re Hernandez), 208 B.R. 872, 880 (Bankr.W.D.Tex.1997); Chase Manhattan Bank, N.A. v. Ford (Matter of Ford), 186 B.R. 312, 317 (Bankr.N.D.Ga.1995). . See, e.g., Chase Manhattan Bank (U.S.A.) N.A. v. Carpenter (Matter of Carpenter), 53 B.R. 724, 728 (Bankr.N.D.Ga.1985). . See, e.g., Rembert, 141 F.3d at 281; Anastas v. American Sav. Bank (In re Anastas), 94 F.3d 1280, 1285 (9th Cir. 1996); Citibank (S.D.), N.A. v. Senty (In re Senty), 42 B.R. 456, 459 (Bankr.S.D.N.Y.1984). . See, e.g., Rembert, 141 F.3d at 281; Anas-tas, 94 F.3d at 1285. . See Chevy Chase Bank, FSB v. Briese (In re Briese), 196 B.R. 440, 450 & n. 16 (Bankr. W.D.Wis.1996). . See also, e.g., Universal Bank, N.A. v. Rich (In re Rich), 249 B.R. 709, 715-16 (Bankr.N.D.Tex.2000) (citing Alvi); cf. FCC Nat’l Bank v. Etto (In re Etto), 210 B.R. 734, 739-40 (Bankr.N.D.Ohio 1997) (where card pre-approved and issued without credit check, card-use not promise to pay). . Judge Duhé’s discussion of Williams overlooks the most fundamental distinction between card-use and payment by check: as discussed above, card-use is a loan-request against a line of credit, an inherent part of which is a promise to repay; a check is neither a loan-request nor a promise to repay. . See also, e.g., Manufacturer’s Hanover Trust Co. v. Ward (In re Ward), 857 F.2d 1082, 1086-87 (6th Cir.1988) (Merritt, J., dissenting) (card relationship is issuer's offer for series of unilateral contracts formed with each card-use (citing Restatement (Second) of Contracts § 31)); AT&T Universal Card Servs. Corp. v. Searle, 223 B.R. 384, 389 (D.Mass. 1998) (Anastas unilateral contract approach consistent with words" }, { "docid": "16298601", "title": "", "text": "Co. v. Schnore (In re Schnore), 13 B.R. 249, 254 (Bankr.W.D.Wis.1981). However, the implied representation of the ability to repay was eliminated in light of the language of Bankruptcy Code § 523(a)(2)(A) making debts nondischargeable “other than a statement respecting the debtor’s or an insider’s financial condition.” See, e.g., Anastas v. Am. Savings Bank (In re Anastas), 94 F.3d 1280, 1285 (9th Cir.1996) (emphasizing the implied representation is only of the intent to repay, not ability to repay). Currently, the “implied representation” analysis applies the fiction that with each use of the credit card, the debtor represents an intent to repay. Id.; AT & T Universal Card Services v. Mercer, 246 F.3d 391, 406 (5th Cir.2001); Rembert, 141 F.3d at 281; AT & T Universal Card Services v. Ellingsworth (In re Ellings-worth), 212 B.R. 326, 334 (Bankr.W.D.Mo.1997). Some courts are critical of the “implied representation” theory. AT & T Universal Card Services v. Alvi (In re Alvi), 191 B.R. 724, 731-32 (Bankr.N.D.Ill.1996); Mercer, 246 F.3d at 425-29 (dissenting opinion). Three arguments are made against application of the legal fiction employed in the theory. First, using a credit card, like issuing a check, is not a representation at all. Alvi, 191 B.R. at 732. According to the Supreme Court, checks are not factual assertions, and therefore cannot be categorized as “true” or “false.” Williams v. US., 458 U.S. 279, 284, 102 S.Ct. 3088, 73 L.Ed.2d 767 (1982). From this, the Alvi court determined that the similarities between credit card use and the issuance of a check “make it illogical to conclude that the use of a credit card in an ordinary credit transaction necessarily involves a representation.” 191 B.R. at 732. Second, no representation was made at the time of the transaction, because the entire agreement between the debtor and the credit card issuer was made when the card was issued. Mercer, 246 F.3d at 426. According to this argument, the credit card agreement delineates the terms and conditions of card use, and therefore embodies the debtor’s intent to repay the credit extended. Id. As the dissent in Mercer stated: So" }, { "docid": "12946502", "title": "", "text": "Spanel Intern. Ltd., 51 F.3d 670, 675 (7th Cir.1995) (“[R]eckless disregard of the truth is a form of intent to defraud.”). A creditor seeking to prevent the discharge of a debt bears the burden of proving these elements by a preponderance of the evidence. See Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 661, 112 L.Ed.2d 755 (1991). Citibank contends that by using his credit card Michel made two implicit representations: (1) that he had the ability to repay the money he borrowed, and (2) that he intended to do so. See Pl.’s Br. at 8-9,12. We need not concern ourselves with any representation about ability to repay because fraud claims based on this kind of representation are not permitted under § 523(a)(2)(A). See 11 U.S.C. § 523(a)(2)(A) (expressly excluding from its coverage any “statement respecting the debtor’s ... financial condition”); In re Anastas, 94 F.3d 1280, 1285 (9th Cir.1996). With respect to the representation of intent to repay, neither party challenges Judge Barliant’s finding that such a representation was made, see Tr. at 7, and most of the credit card cases we have found support his reasoning. See In re Anastas, 94 F.3d at 1285-86; In re Christensen, 193 B.R. 863, 866 (N.D.Ill.1996); In re Bone, No. 95 C 1720, 1995 WL 519728, at *2 (N.D.Ill. Aug. 22, 1995); In re Feld, 203 B.R. 360, 366 (Bankr.E.D.Pa.1996); In re Berz, 173 B.R. at 162; but see In re Alvi, 191 B.R. 724, 731-32 (Bankr.N.D.Ill.1996) (use of a credit card involves no implicit representations). Thus, the critical factual question is whether Michel’s professed intention to repay Citibank was false. Citibank complains that Judge Barliant analyzed this question improperly, determining Michel’s intent “solely by [his] stated subjective intent, however implausible, unreasonable or reckless.” PL’s Br. at 1. This contention misconstrues the disposition-below. A bankruptcy judge attempting to determine the applicability of § 523(a)(2)(A) must evaluate the subjective intent of the debtor: there is no fraud when a person makes a representation that he sincerely believes is true. See Palmacci v. Umpierrez, 121 F.3d 781, 788 (1st Cir.1997) (“A ‘dumb" }, { "docid": "19150045", "title": "", "text": "1087 (9th Cir.1996); In re Anastas, 94 F.3d 1280, 1285 (9th Cir.1996); In re Hinman, 120 B.R. 1018 (Bankr.D.N.D.1990). The Tenth Circuit, in an unpublished decision predating the Ninth Circuit opinions, signaled its endorsement of the majority view. Signet Bank v. Keyes (In re Keyes) 959 F.2d 245, 1992 WL 66723 at p. 3 (10th Cir.1992)(Unpublished Disposition). There is some split of authority as to whether the implied representation is only of the intent, but not the ability, to repay. Recently, the Ninth Circuit “emphasize[d] that the representation made by the cardholder in a credit card transaction is not that he has an ability to repay the debt; it is that he has an intention to repay. Indeed, section 523(a)(2) expressly prohibits using a non-written representation of a debt- or’s financial condition as a basis for fraud.” In re Anastas, 94 F.3d at 1285; In re Bixel, 215 B.R. at p. 775-76 citing In re Anastas. For purposes of trial, it is not enough for the credit card issuer to simply rest on the implied representation of an intent to repay. The Plaintiff still' has the burden of proving that the representation was false and was made with an intent to deceive. In re Bixel, 215 B.R. at p. 774-75. Accord In re Keyes, 1992 WL 66723 at p. 3; In re Hinman, 120 B.R. at 1021. Generally, intent must be proved circumstantially and courts have come to rely on a twelve factor laundry list to determine whether the debt- or intended to deceive the creditor. In re Hinman, 120 B.R. at 1021; In re Anastas, 94 F.3d at 1284 n. 1; In re Keyes, 1992 WL 66723 at p. 3, all citing In re Dougherty, 84 B.R. 653, 657 (9th Cir. BAP 1988). The Plaintiff also has the burdén as to the element of justifiable reliance. Accord In re Anastas, 94 F.3d at 1286; In re Mullet, 817 F.2d at 680; In re Faulk, 69 B.R. 743, 748 (Bankr.N.D.Ind.1986). “In the context of credit card debt, ‘the card issuer justifiably relies on a representation of intent to repay as" }, { "docid": "7490419", "title": "", "text": "Cir.1992); Seepes v. Schwartz (In re Schwartz), 45 B.R. 354, 356-57 (S.D.N.Y.1985); Chemical Bank v. Sigrist (In re Sigrist), 163 B.R. 940, 947 (Bankr.W.D.N.Y.1994). Accordingly, for the purposes of determining dis-chargeability under § 523(A)(2)(a), it is a debtor’s intent and not ability to repay the incurred indebtedness which may be properly inferred from the use of a credit-card. See, e.g., In re Anastas, 94 F.3d at 1285 (“We emphasize that the representation made by the card holder in a credit card transaction is not that he has an ability to repay the debt; it is that he has an intention to repay.”); Sears Roebuck and Co. v. Faulk (In re Faulk), 69 B.R. 743, 755 (Bankr.N.D.Ind.1986) (“[U]se of the credit card is a statement of a present intention to pay at the time of purchase rather than an unwritten representation of the ability to pay or financial condition.”); In re Carpenter, 53 B.R. at 730 (holding use of a charge card implies present intention and not present ability to pay). AT & T is correct in that the truth or falsity of this implied representation of a mental state is an inherently factual determination which is not normally amenable to summary judgment. See Citizens Bank of Clearwater v. Hunt, 927 F.2d 707, 711 (2d Cir.1991); see also AT & T Universal Card Services Corp. v. Burns (In re Burns), 196 B.R. 11, 13 (Bankr.W.D.N.Y.1996) (“[I]t is almost axiomatic that fraudulent intent is uniquely not susceptible to resolution ‘on papers’.”); AT & T Universal Card Services Corp. v. Berry (In re Berry), 197 B.R. 382, 383 (Bankr.M.D.Fl.1996). Thus, the sole remaining basis upon which the Debtor’s Summary Judgment Motion may be granted is AT & T’s asserted inability to establish the element of reliance. To prevail on its nondischargeability lawsuit under § 523(a)(2)(A), AT & T has the burden of proving it actually relied on the Debtor’s alleged misrepresentation and that such reliance was justifiable. Field v. Mans, — U.S. at -, 116 S.Ct. at 446; see also In re Alvi, 191 B.R. at 730-31. As recently stated by the Supreme" } ]

[ { "docid": "20145158", "title": "", "text": "of whether Congress acted pursuant to its commerce clause power or § 5 of the Fourteenth Amendment”); EEOC v. Wyoming, 460 U.S. 226, 244 n. 18, 103 S.Ct. 1054, 1064 n. 18, 75 L.Ed.2d 18 (1983) (“rule of statutory construction to be applied where statutory intent is ambiguous [is that] Congress must state its intent to impose mandatory obligations on the states”); Quern, 440 U.S. at 342-44, 99 S.Ct. at 1145-47 (“it is not easy to infer that Congress in legislating pursuant to the Commerce Clause ... desired silently to deprive the States of an immunity they have long enjoyed”). The Court has similarly employed a stringent standard to determine whether a state has waived Eleventh Amendment immunity. As stated in Feeney: “The Court will give effect to a State’s waiver of Eleventh Amendment immunity ‘only where stated by the most express language or by such overwhelming implication from the text as [will] leave no room for any other reasonable construction.'\" 495 U.S. at 305, 110 S.Ct. at 1873 (quoting Atascadero, 473 U.S. at 239-40, 105 S.Ct. at 3146) (emphasis added); see also Welch, 483 U.S. at 473, 107 S.Ct. at 2945; Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 1360, 39 L.Ed.2d 662, reh’g denied, 416 U.S. 1000, 94 S.Ct. 2414, 40 L.Ed.2d 777 (1974). A state does not waive its Eleventh Amendment immunity by consenting to suit only in its own courts. Feeney, 495 U.S. at 306, 110 S.Ct. at 1873; Florida Dep’t of Health, 450 U.S. at 150, 101 S.Ct. at 1034. For a state statute or constitutional provision to constitute a waiver of Eleventh Amendment immunity, “it must specify the State’s intention to subject itself to suit in federal court.” Feeney, 495 U.S. at 306, 110 S.Ct. at 1873 (quoting Atascadero, 473 U.S. at 241, 105 S.Ct. at 3146) (emphasis in original). The Court has offered numerous rationale for these strict standards of interpretation. First, “abrogation of sovereign immunity upsets the ‘fundamental constitutional balance between the Federal Government and the States.’ ” Feeney, 495 U.S. at 305, 110 S.Ct. at 1872; Dellmuth, 491 U.S." } ]

[ { "docid": "12025495", "title": "", "text": "100 S.Ct. 2939, 64 L.Ed.2d 823 (1979); Hernandez v. Whitesell, 462 F.Supp. 569, 573-74 (E.D.Pa.1978). Contra Greenfield v. Vesella, 457 F.Supp. 316, 319-20 (W.D.Pa.1978). For the reasons discussed below, we agree with the conclusion of these courts. The cases which have considered a state’s waiver of its Eleventh Amendment immuni ty have generally concerned the following issues: First, whether a particular legislative enactment permitting suits against a state in its courts serves as a consent to comparable suits in federal court. See, e.g., Kennecott Copper Corp. v. State Tax Commission, 327 U.S. 573, 66 S.Ct. 745, 90 L.Ed. 862 (1946) (Utah statute giving consent to certain taxpayers’ suits not applicable to suits in federal court). Second, whether certain actions by the state, such as participation in federal aid programs, constitute consent to suit in federal court. See, e.g., Edelman v. Jordan, 415 U.S. 651, 671-74, 94 S.Ct. 1347, 1359-61, 39 L.Ed.2d 662 (1974) (no waiver by mere participation in federal welfare programs); Daye v. Commonwealth of Pennsylvania, 483 F.2d 294, 298 (3d Cir. 1973), cert. denied, 416 U.S. 946, 94 S.Ct. 1956, 40 L.Ed.2d 298 (1974) (no waiver based on mere acceptance of funds by the Commonwealth under the Federal-Aid Highway Act). See also Parden v. Terminal Ry., 377 U.S. 184, 192-93, 84 S.Ct. 1207, 1212-13, 12 L.Ed.2d 233 (1964) (where congressional statute authorized suit in federal court against any railroad operating in interstate commerce, state’s operation of railroad in interstate commerce constituted consent to suit in federal court); Petty v. Tennessee-Missouri Bridge Commission, 359 U.S. 275, 79 S.Ct. 785, 3 L.Ed.2d 804 (1959) (waiver of immunity found in states’ entering into interstate compact approved by Congress). Third, whether Eleventh Amendment immunity has been waived by a general or voluntary appearance in federal court by an officer of the state, such as the attorney general. See, e.g., Clark v. Barnard, 108 U.S. 436, 447-48, 2 S.Ct. 878, 882-83, 27 L.Ed. 780 (1883) (waiver found based on voluntary appearance by the state in litigation in federal court). But see Richins v. Industrial Construction, Inc., 502 F.2d 1051, 1056 (10th Cir. 1974)" }, { "docid": "16980694", "title": "", "text": "and its agencies unless the state has waived its sovereign immunity or Congress has overridden it. Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979); Whittington v. Milby, 928 F.2d 188 (6th Cir.1991). The state of Ohio has not clearly waived its sovereign immunity from suit in the ease of claims brought under the ADA or the Rehabilitation Act. The state of Ohio has only consented to suit in the Ohio Court of Claims pursuant to Ohio Rev.Code § 2743.02. Under Article I, § 16 of the Ohio Constitution, only the Ohio General Assembly may waive Ohio’s sovereign immunity through legislative action. State of Ohio v. Madeline Marie Nursing Homes, 694 F.2d 449, 460 (6th Cir.1982). Plaintiff points to no statutory enactment whereby the General Assembly has done so in ADA and Rehabilitation Act cases. Plaintiff argues that defendant waived its sovereign immunity because it is an agency which receives funds from the federal government. However, the mere fact that the state participates in a program through which the federal government provides funding to the state is not sufficient to establish the state’s consent to suit. Atascadero State Hospital v. Scanlon, 473 U.S. 234, 246-47, 105 S.Ct. 3142, 3149-50, 87 L.Ed.2d 171 (1985) (state did not waive Eleventh Amendment by receipt of funds under the Rehabilitation Act); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). The state can waive its sovereign immunity when it voluntarily participates in a program where Congress has conditioned participation in the program on the state’s consent to suit in federal court. Florida Dept, of Health & Rehabilitative Services v. Florida Nursing Home Assn., 450 U.S. 147, 101 S.Ct. 1032, 67 L.Ed.2d 132 (1981); Tennessee Dept, of Human Services v. United States Dept, of Education, 979 F.2d 1162, 1166 (6th Cir.1992). This was not the case here. There has been no waiver of sovereign immunity by the defendant in this case. Congress also has the authority in some cases to override the states’ immunity under the Eleventh Amendment. In deciding whether Congress has effectively abrogated a state’s" }, { "docid": "13189516", "title": "", "text": "consents to the jurisdiction of the federal court. However, given the fact that Eleventh'Amendment waivers are disfavored, such a waiver will only be found where the state has declared its intent to waive its Eleventh Amendment immunity “by the most express language or by such overwhelming implication from the text as will leave no room for any other reasonable construction.” Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 1361, 39 L.Ed.2d 662 (1974) quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S.Ct. 458, 464, 53 L.Ed. 742 (1909). For example, a waiver by a state court of its sovereign immunity from suit in its own courts will not, standing alone, be construed to be a waiver of a state’s immunity from suit in the federal courts under the Eleventh Amendment. Johns v. Supreme Court of Ohio, 753 F.2d 524 (6th Cir.1985), certiorari denied, 474 U.S. 824, 106 S.Ct. 79, 88 L.Ed.2d 65, (1985) citing Florida Dept. of Health v. Florida Nursing Home Assn., 450 U.S. 147, 150, 101 S.Ct. 1032, 1034, 67 L.Ed.2d 132 (1981). In addition, a state which merely accepts federal funds pursuant to a federal statute does not thereby waive its immunity under the Eleventh Amendment. Atascadero State Hospital, 473 U.S at 246-47, 105 S.Ct. 3142. In the instant case, the Court holds that the State of Ohio did not explicitly waive its sovereign immunity as the Court was unable to discern, and the Parties did not present, any evidence tending to show that the State of Ohio effectuated an explicit waiver of its Eleventh Amendment immunity based upon the application of the foregoing principles. However, even in the absence of an explicit waiver by a state to become subject to the jurisdiction of the federal courts, a state’s consent may still be inferred through its affirmative conduct in what is sometimes referred to as a constructive waiver. Clark v. Barnard, 108 U.S. at 448, 2 S.Ct. at 883; Hankins v. Finnel, 964 F.2d 853, 856 (8th Cir.1992); Garrity v. Sununu, 752 F.2d 727, 738 (1st Cir.1984). However, like an explicit waiver," }, { "docid": "271313", "title": "", "text": "immu nity by participating in a federally-funded program only if participation is accompanied by “an unequivocal indication that the State intends to consent to federal jurisdiction that otherwise would be barred by the Eleventh Amendment.” That token of consent may appear in the state’s law or in an unambiguous statutory condition on participation. See also Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 1360, 39 L.Ed.2d 662 (1974) (waiver found only “where stated ‘by the most express language or by such overwhelming implication from the text as [will] leave no room for any other reasonable construction’ ”); Florida Department of Health & Rehabilitative Services v. Florida Nursing Ass’n, 450 U.S. 147, 150, 101 S.Ct. 1032, 1034, 67 L.Ed.2d 132 (1981). The plaintiffs point to no language in the state statute or any “overwhelming implications from the text” of the state statute to support their claim that the state consented to suits for damages and waived its immunity. There is no such language or implication in the statute. We find that the state did not waive its constitutional immunity. The plaintiffs next argue that Congress abrogated the state’s eleventh amendment immunity by enacting the Act pursuant to § 5 of the fourteenth amendment. Fitzpatrick v. Bitzer, supra. The most recent statement of the law on this issue is found in Atascadero. Noting that “the Eleventh Amendment implicates the fundamental constitutional balance between the Federal government and the States”, the Court held that Congress may abrogate the states’ immunity “only by making its intention unmistakably clear in the language of the statute. ” Id. 105 S.Ct. at 3145-47 (emphasis added). Furthermore, “[a] general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment.” Id. at 3149. The statute at issue in Atascadero, § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, is similar in all relevant parts to the statute at issue in this case. Both explicitly provide a private right of action for prospective relief for all aggrieved parties. Neither explicitly provides a damages remedy or" }, { "docid": "15291494", "title": "", "text": "constitution). Thus, KSU argues that-in this case a waiver may only be found if the text of Kan. Stat. Ann. § 76-723 overwhelmingly implies no other reasonable construction. On the other hand, the debtors urge us to follow the approach taken by the bankruptcy and district courts-reading the legislation in concert with the contract and the federal regulation to determine whether they expressly state or overwhelmingly imply that KSU waived Eleventh Amendment immunity. To resolve this dispute, we must evaluate whether a state may waive immunity by its affirmative conduct in the context of a federal. program or whether Edelman mandates that a state can waive only by express statements or overwhelming implication in its statutory or constitutional text. See Atascadero, 473 U.S. at 238. n. 1 & 239-40, 105 S.Ct. 3142; Edelman, 415 U.S. at 673, 94 S.Ct. 1347. Several Supreme Court decisions. provide that neither receipt of federal funds, participation in a federal program, nor an agreement to recognize and abide by federal laws, regulations, and guidelines is alone sufficient to waive Eleventh Amendment immunity. See Atascadero, 473 U.S. at 246-47, 105 S.Ct. 3142 (holding that participation in federal programs and receipt of federal funds under such programs “fall[] far short of manifesting a clear intent ... to waive immunity”); Florida Dep’t of Health & Rehab. Servs. v. Florida Nursing Home Ass’n, 450 U.S. 147, 150, 101 S.Ct. 1032, 67 L.Ed.2d 132 (1981) (stating that state agency’s explicit agreement “to obey federal law in administering federal program can hardly be deemed an express waiver of Eleventh Amendment immunity”); Edelman, 415 U.S. at 673-74, 94 S.Ct. 1347 (holding that neither mere participation in a federal program nor provision requiring compliance with federal law is sufficient to establish that the state consented to be sued in federal court); accord Duke v. Department of Agric., 131 F.3d 1407, 1408 (10th Cir.1997) (holding that New Mexico did not waive Eleventh Amendment immunity “by engaging in activities and entering contracts subject to federal regulation”). In spite of these holdings, however, this court and several others, including the Supreme Court, have concluded that, “in" }, { "docid": "22284479", "title": "", "text": "Cir. 1981), quoting Arthur v. Nyquist, 573 F.2d 134 (2d Cir. 1978); see also Edelman v. Jordan, supra, 415 U.S. at 663, 94 S.Ct. at 1355; Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 463-64, 65 S.Ct. 347, 350-51, 89 L.Ed. 389 (1945). (B) Waiver Appellant argues in the alternative that such immunity as would ordinarily pertain has here been abrogated by Congress in passing the Education Act, and by the State of Missouri in accepting federal funds under the Act. Appellant correctly points out that Congress may abrogate such eleventh amendment immunity as would otherwise apply under § 5 of the fourteenth amendment. Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). Abrogation of the states’ immunity, however, will not be found in the absence of express, formal abrogation or persuasive legislative history. Quern v. Jordan, 440 U.S. 332, 345 & n.16, 99 S.Ct. 1139, 1147 & n.16, 39 L.Ed.2d 358 (1979). Assuming arguendo that the Education Act was passed pursuant to the fourteenth amendment, an intent to sweep away the immunity of the states cannot be inferred from this fact alone. Id. at 345, 99 S.Ct. at 1147. Appellant offers and we have found no evidence in the legislative history that the Education Act was intended by Congress to abrogate the states’ immunity. In addition to arguing Congressional abrogation, appellant contends that the state waived its immunity by participating in a program of federal assistance. The argument of waiver by participation, however, has been rejected by the Supreme Court. Florida Department of Health & Rehabilitative Services v. Florida Nursing Home Ass'n, 450 U.S. 147, 150, 101 S.Ct. 1032, 1034, 67 L.Ed.2d 132 (1981); Edelman v. Jordan, supra, 415 U.S. at 673, 94 S.Ct. at 1360. Waiver of immunity by a state will be found “only where stated ‘by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.’ ” Florida Department of Health & Rehabilitative Services, supra, 450 U.S. at 150, 101 S.Ct. at 1034, quoting Edelman v. Jordan, supra," }, { "docid": "271312", "title": "", "text": "79 L.Ed.2d 67 (1984), or because of principles of sovereign immunity inherent in the structure of the constitution, Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890); Pennhurst, supra. A state may be sued in federal court only if it consents and waives its immunity, Clark v. Barnard, 108 U.S. 436, 447, 2 S.Ct. 878, 882, 27 L.Ed. 780 (1883), or if Congress, using power granted by § 5 of the fourteenth amendment, abrogates the state’s immunity, Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 2671, 49 L.Ed.2d 614 (1976). The plaintiffs argue first that the state has waived its immunity by participating in this federally funded and regulated program. They cite Students of California School for the Blind v. Honig, 736 F.2d 538 (9th Cir.1984). We find this argument unpersuasive. The Supreme Court has rejected the concept of waiver by mere participation. Atascadero State Hospital v. Scanlon, — U.S. —, 105 S.Ct. 3142, 3145 & n. 1, 87 L.Ed.2d 171 (1985), holds that a state waives its constitutional immu nity by participating in a federally-funded program only if participation is accompanied by “an unequivocal indication that the State intends to consent to federal jurisdiction that otherwise would be barred by the Eleventh Amendment.” That token of consent may appear in the state’s law or in an unambiguous statutory condition on participation. See also Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 1360, 39 L.Ed.2d 662 (1974) (waiver found only “where stated ‘by the most express language or by such overwhelming implication from the text as [will] leave no room for any other reasonable construction’ ”); Florida Department of Health & Rehabilitative Services v. Florida Nursing Ass’n, 450 U.S. 147, 150, 101 S.Ct. 1032, 1034, 67 L.Ed.2d 132 (1981). The plaintiffs point to no language in the state statute or any “overwhelming implications from the text” of the state statute to support their claim that the state consented to suits for damages and waived its immunity. There is no such language or implication in the statute. We find that the state did" }, { "docid": "1696297", "title": "", "text": "set rates in excess of the avoided cost. This argument is specious however, because if states are pre-empted from establishing QF contract rates above avoided costs, they clearly have no independent authority to do so. Thus, resolution of one issue was necessarily determinative of the other. .See supra note 44. . The Eleventh Amendment provides: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. U.S. Const., amend. XI. . Indeed, this Court noted: Constructive consent is not a doctrine commonly associated with the surrender of constitutional rights.” College Sav.Bank, 527 U.S. at 681, 119 S.Ct. 2219 (quoting Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974)). \"True waiver of a constitutional right is demonstrably an 'intentional relinquishment or abandonment of a known right or privilege.’ ” Id. (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)). \"[CJourts indulge every reasonable presumption against waiver” of fundamental constitutional rights. Id. (quoting Aetna Ins. Co. v. Kennedy ex rel. Bogash, 301 U.S. 389, 393, 57 S.Ct. 809, 81 L.Ed. 1177 (1937)). The Supreme Court has expressly held that a state’s participation in or agreement to administer a federal program does not constitute waiver of Eleventh Amendment immunity. See Florida Dep’t of Health & Rehab. Servs. v. Florida Nursing Home Assoc., 450 U.S. 147, 150, 101 S.Ct. 1032, 67 L.Ed.2d 132 (1981) (state’s participation in federal Medicaid program through which federal government provides assistance for operation by state of system of public aid and agreement to abide by federal law in doing so is not sufficient to establish consent on part of state to be sued in federal courts). Thus, the Court rejects NYSEG's contention that New York waived its sovereign immunity against being sued in federal court by agreeing to implement PURPA. NYSEG, 117 F.Supp.2d at 250. . There, the Supreme Court held that the Eleventh Amendment was" }, { "docid": "16553909", "title": "", "text": "\"in any court of competent jurisdiction” nor its consent to be sued in its own state courts is sufficient to constitute a waiver of Eleventh Amendment immunity. Atascadero State Hosp., 473 U.S. at 241, 105 S.Ct. at 3146; Florida Dept. of Health v. Florida Nursing Home Assn., 450 U.S. 147, 149-150, 101 S.Ct. 1032, 1034, 67 L.Ed.2d 132 (1981) (per curiam). Instead, to constitute a waiver, a state statute or constitutional provision must unequivocally specify the State’s intention to subject itself to suit in federal court. Atascadero State Hosp., 473 U.S. at 241, 105 S.Ct. at 3146-47. In this case, the Plaintiff has identified no Iowa statute or Iowa constitutional provision that would satisfy this test, and this Court finds none. Any argument that ICSAC has explicitly waived its Eleventh Amendment sovereign immunity must, therefore, fail. . See Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); Fla. Dep’t of Health v. Fla. Nursing Home Ass’n, 450 U.S. 147, 101 S.Ct. 1032, 67 L.Ed.2d 132 (1981); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). . Professor Chemerinsky states as follows: In short, constructive waiver of Eleventh Amendment immunity is virtually nonexistent. If it ever will exist, it will be in situations where Congress indicates a clear intent to make states liable in federal court if they engage in a particular activity, and then a state voluntarily chooses to engage in that conduct. The congressional desire to make states liable must be in “unmistakable language in the statute itself” and it must be an area where the state realistically could choose not to engage in the activity. Chemerinsky, supra, at 410. See also Gibson I, supra, at 346-47; S. Elizabeth Gibson, Sovereign Immunity in Bankruptcy: the Next Chapter, 70 Am.Bankr. L.J. 195, 211-12 (1996) [hereinafter Gibson II]. . ICSAC argues that, to \"resolve” the waiver issue, it will withdraw its counterclaim from this proceeding. This argument must fail, however, as it is antithetical" }, { "docid": "14818995", "title": "", "text": "by the later enactment of the Fourteenth Amendment to the extent that such a limitation is necessary to effectuate the purposes of that [Fourteenth] Amendment...”); United States v. DCS Development Corp., 590 F.Supp. 1117 (W.D.N.Y.1984) (refusing “to go further in this case than was deemed prudent in Holley v. Lavine”). The Eleventh Amendment states: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. Since Hans v. Louisiana, 134 U.S. 1, 10, 10 S.Ct. 504, 505, 33 L.Ed. 842 (1890), the Supreme Court has interpreted the Eleventh Amendment to render states and state agencies immune from suits for damages in federal court even where jurisdiction is premised on a federal question. Two exceptions to the blanket jurisdictional ban of Hans have developed. The first occurs when a congressional enactment clearly intends to hold states liable for damages. See Pennsylvania v. Union Gas Co., — U.S. -, 109 S.Ct. 2273, 2281, 105 L.Ed.2d 1 (1989) (plurality); Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976); County of Monroe v. Florida, 678 F.2d 1124, 1131-1132 (2d Cir.1982) (explaining Edelman v. Jordan, 415 U.S. 651, 672, 94 S.Ct. 1347, 1360, 39 L.Ed.2d 662 (1974) and Employees v. Missouri Dept. of Public Health and Welfare, 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973)), cert. denied, 459 U.S. 1104, 103 S.Ct. 726, 74 L.Ed.2d 951. The second exception is when a state consents to liability. See Clark v. Barnard, 108 U.S. 436, 2 S.Ct. 878, 27 L.Ed. 780 (1883); Parden v. Terminal Railway, 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964). Evidence of a state’s waiver must be strong, Edelman, 415 U.S. at 673, 94 S.Ct. at 1360, but it can be in the form of “constructive consent.” Petty v. Tennessee Missouri Bridge Commission, 359 U.S. 275, 79 S.Ct. 785, 3 L.Ed.2d 804 (1959). See County of Monroe v. Florida, 678 F.2d at 1133." }, { "docid": "227182", "title": "", "text": "pressure turns into compulsion. See West Virginia, 289 F.3d at 286-87 (citations omitted). A state may waive its immunity by either explicitly specifying its intention to subject itself to suit in federal court, or by voluntarily participating in federal spending programs where Congress expressed a clear intent to condition receipt of a federal benefit or federal funds on the State’s consent to waive. See Booth v. Maryland, 112 F.3d 139, 145 (4th Cir. 1997) (citation omitted). Waiver of immunity as a condition to the receipt of funds should be found only where a statute so provides “by the most express language or by such overwhelming implications from the text as (will) leave no room for any other reasonable construction.” Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); McConnell v. Adams, 829 F.2d 1319, 1329 (4th Cir.1987) (citation omitted). Mere participation by a state in a program through which the Federal Government provides assistance for the operation of a state system is insufficient to constitute consent to be sued in federal court. See Florida D&p’t of Health v. Florida Nursing Home Assoc., 450 U.S. 147, 150, 101 S.Ct. 1032, 67 L.Ed.2d 132 (1981) (citing Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S.Ct. 458, 53 L.Ed. 742 (1909)); Edelman, 415 U.S. at 673, 94 S.Ct. 1347. GMU waived its sovereign immunity by accepting federal assistance under the Rehabilitation Act. Under the Rehabilitation Act, Congress stated that no disabled individual shall be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance. See 29 U.S.C. § 794. Congress provided further that: A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of Section 504 of the Rehabilitation Act of 1973 [29 U.S.C. § 794] ... or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance. 42 U.S.C. § 2000d-7. The Fourth Circuit has set forth that any state reading that" }, { "docid": "14638983", "title": "", "text": "appropriate only where the state’s consent is “stated by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.” Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). Courts are instructed to “‘indulge every reasonable presumption against waiver’” of sovereign immunity. College Savings Bank, 527 U.S. 666, 682, 119 S.Ct. 2219 (quoting Aetna Ins. Co. v. Kennedy ex rel. Bogash, 301 U.S. 389, 393, 57 S.Ct. 809, 81 L.Ed. 1177 (1937)). In light of the Supreme Court’s guidance, we have acknowledged that the “waiver by the state must be voluntary and our test for determining voluntariness is a stringent one.” MCI, 271 F.3d at 503 (citations omitted). In recent years, there have been a number of suits against sovereign states under federal remedial legislation and, as a result, substantial contributions to Eleventh Amendment jurisprudence. See, e.g., Koslow, 302 F.3d at 168. Based on the case law, we discern at least two ways in which a state may consent to suit in federal court and waive its Eleventh Amendment immunity. First, a state may make an unambiguous statement that it intends to subject itself to suit in, for example, state legislation or an interstate compact. See, e.g., Petty v. Tennessee-Missouri Bridge Commission, 359 U.S. 275, 277-82, 79 S.Ct. 785, 3 L.Ed.2d 804 (1959). The second scenario-the one relevant to the present appeal-occurs when Congress bestows a gift or gratuity, to which the state is not otherwise entitled, with the condition that the state waive its Eleventh Amendment immunity, and the state accepts that gift or gratuity. See MCI, 271 F.3d at 505 (“[T]he disbursement of federal monies are congressionally bestowed gifts or gratuities, which Congress is under no obligation to make, which a state is not otherwise entitled to receive, and to which Congress can attach whatever conditions it chooses”) (citation omitted). As is often the case, but not always, the gift or gratuity at issue is federal funds disbursed by Congress pursuant to its Article I spending powers. See U.S. Const, art. I," }, { "docid": "13205028", "title": "", "text": "also explicitly waive the protections of the Eleventh Amendment by choosing to participate in a federal program for which waiver of immunity is a stated condition. See Mills v. Maine, 118 F.3d 37, 50 (1st Cir.1997) (citing Atascadero State Hosp., 473 U.S. at 241, 105 S.Ct. 3142); Alden v. Maine, 527 U.S. 706, 755, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999) (“Nor, subject to constitutional limitations, does the Federal Government lack the authority or means to seek the States’ voluntary consent to private suits.”) (citing South Dakota v. Dole, 483 U.S. 203, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987)). Mere participation by a state in a federal program does not, however, establish the state’s consent to be sued in federal court; the state’s decision to waive its immunity as a condition of participating in the federal program also requires “‘express language or ... such overwhelming implications from the text as [will] leave no room for any other reasonable construction. ...’” Fla. Dep’t of Health & Rehabilitative Sews. v. Fla. Nursing Home Ass’n, 450 U.S. 147, 150, 101 S.Ct. 1032, 67 L.Ed.2d 132 (1981) (per curiam) (quoting Edelman, 415 U.S. at 673, 94 S.Ct. 1347). Lastly, a state may waive its immunity through its affirmative conduct in litigation. See Paul N. Howard Co. v. Puerto Rico Aqueduct & Sewer Auth., 744 F.2d 880, 886 (1st Cir.1984). Most pertinent to the issue faced here is the maxim that a federal court “will find a waiver ... if the State voluntarily invokes [its] jurisdiction .... ” College Savings, 527 U.S. at 675-76, 119 S.Ct. 2219 (citing Gunter v. Atlantic Coast Line R. Co., 200 U.S. 273, 284, 26 S.Ct. 252, 50 L.Ed. 477 (1906)). See also Clark, 108 U.S. at 447-48, 2 S.Ct. 878 (holding that state waived its Eleventh Amendment immunity by intervening in a federal case as a claimant of a fund). In Gardner v. New Jersey, 329 U.S. 565, 67 S.Ct. 467, 91 L.Ed. 504 (1947), the Supreme Court held that a state’s sovereign immunity did not bar a debtor from asserting defensive objections to a proof of claim filed" }, { "docid": "16980695", "title": "", "text": "provides funding to the state is not sufficient to establish the state’s consent to suit. Atascadero State Hospital v. Scanlon, 473 U.S. 234, 246-47, 105 S.Ct. 3142, 3149-50, 87 L.Ed.2d 171 (1985) (state did not waive Eleventh Amendment by receipt of funds under the Rehabilitation Act); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). The state can waive its sovereign immunity when it voluntarily participates in a program where Congress has conditioned participation in the program on the state’s consent to suit in federal court. Florida Dept, of Health & Rehabilitative Services v. Florida Nursing Home Assn., 450 U.S. 147, 101 S.Ct. 1032, 67 L.Ed.2d 132 (1981); Tennessee Dept, of Human Services v. United States Dept, of Education, 979 F.2d 1162, 1166 (6th Cir.1992). This was not the case here. There has been no waiver of sovereign immunity by the defendant in this case. Congress also has the authority in some cases to override the states’ immunity under the Eleventh Amendment. In deciding whether Congress has effectively abrogated a state’s sovereign immunity, the court must determine: (1) whether Congress has unequivocally expressed its intent to abrogate immunity; and (2) whether Congress has acted pursuant to a valid exercise of power, that is, whether the law was passed pursuant to a constitutional provision which grants Congress the power to abrogate. Seminole Tribe of Florida v. Florida, 517 U.S. 609, ---, 116 S.Ct. 1114, 1123-25, 134 L.Ed.2d 252 (1996). The first prong of the Seminole test is clearly satisfied here. Title 42 U.S.C. § 2000d-7 provides that states shall not be immune under the Eleventh Amendment from suit in federal court for violations of the Rehabilitation Act under 29 U.S.C. § 794. Likewise, 42 U.S.C. § 12202 provides that states are not immune from suit under the ADA. Congress has plainly indicated its intent to abrogate the states’ sovereign immunity from actions under the Rehabilitation Act and the ADA. In regard to the second prong of the Seminole test, the only currently recognized authority for Congress to abrogate the states’ sovereign immunity, as indicated in Seminole, 517" }, { "docid": "17835019", "title": "", "text": "no room for any other reasonable construction.’ ” Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 1361, 39 L.Ed.2d 662 (1974) (quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 29 S.Ct. 458, 53 L.Ed. 742 (1909)). A state’s waiver of its sovereign immunity does not waive its constitutional Eleventh Amendment immunity to suits in federal court. Florida Department of Health and Rehabilitative Services v. Florida Nursing Home Association, 450 U.S. 147, 150, 101 S.Ct. 1032, 1034, 67 L.Ed.2d 132 (1981). Tuveson argues the Governor’s direction that the Council register as a not-for-profit corporation waived the Council’s Eleventh Amendment immunity since a non-profit corporation can “[s]ue and be sued, ... in all actions and proceedings in its corporate names to the same extent as a natural person.” Fla.Stat.Ann. § 617.021(2). This statutory language, however, would not waive the Council’s sovereign immunity. Spangler v. Florida State Turnpike Authority, 106 So.2d 421 (Fla.1958). It certainly is not the type of explicit waiver of Eleventh Amendment immunity required by the Supreme Court. See Florida Nursing Home Association, 450 U.S. at 150, 101 S.Ct. at 1034. The Attorney General’s appearance on the Council’s behalf also did not constitute waiver. Under the Florida Constitution, waiver of immunity can only occur by explicit act of the state legislature. Fla. Const. Art. X § 13; Manatee County v. Town of Longboat Key, 365 So.2d 143 (Fla.1978); see Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 466-67, 65 S.Ct. 347, 351-352, 89 L.Ed. 389 (1945). We note that the federal district courts have differing views as to whether certain Florida statutes constitute a waiver of constitutional immunity in certain actions. Compare Meeker v. Addison, 577 F.Supp. 751 (S.D.Fla.1983), with Shinholster v. Graham, 527 F.Supp. 1318, 1329-32 (N.D.Fla.1981). Tuveson contends that the Council should be estopped from raising Eleventh Amendment immunity because in state court the Council claimed not to be a state agency. Under the doctrine of equitable estoppel, a party may not maintain inconsistent positions in successive law suits when he has successfully convinced a court of the merit of his position in" }, { "docid": "7135966", "title": "", "text": "L.Ed. 780 (1883). We review these methods in detail: First, a waiver of Eleventh Amendment immunity by state statute or constitutional provision must be clear and unequivocal in order for it to be effective. Seminole, 517 U.S. at 55-56, 116 S.Ct. at 1122-23. It must be “stated by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.” College Savings Bank. v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666, 678, 119 S.Ct. 2219, 2227, 144 L.Ed.2d 605 (1999) (quoting Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (internal quotation marks omitted)). The following examples of provisions in state statutes and constitutions, which the Supreme Court held would not effectuate a waiver; give us an idea of how clear the waiver must be: a statement consenting to suit in the courts of its own creation does not waive immunity, Smith v. Beeves, 178 U.S. 436, 441-45, 20 S.Ct. 919, 921-23, 44 L.Ed. 1140 (1900); a declaration of the state’s intention that it or one of its agencies can “sue or be sued” does not waive immunity, Florida Dept. of Health and Rehabilitative Services v. Florida Nursing Home Ass’n, 450 U.S. 147, 149-50, 101 S.Ct. 1032, 1034, 67 L.Ed.2d 132 (1981); and a statement authorizing suits against the state or one of its agencies “in any court of competent jurisdiction,” does not waive .immunity. Kennecott Copper Corp. v. State Tax Comm’n, 327 U.S. 573, 577-79, 66 S.Ct. 745, 747, 90 L.Ed. 862 (1946). Second, mere participation in a federal program or an agreement to recognize and abide by federal laws, regulations, and guidelines is insufficient to waive Eleventh Amendment immunity. See Atascadero, 473 U.S. at 246-47, 105 S.Ct. at 3149-50 (holding that participation in federal programs and receipt of federal funds under such programs “fall[ ] far short of manifesting a clear intent ... to waive immunity”); Florida Nursing Home Ass’n, 450 U.S. at 150, 101 S.Ct. at 1034 (stating that state agency’s explicit agreement “to obey federal law in administering the" }, { "docid": "7900420", "title": "", "text": "not speak to the existence of the cause of action but rather whether the judicial power of the United States reaches the action, assuming it exists. A state’s waiver of its common law sovereign immunity does not cause a waiver of Eleventh Amendment immunity against the action being brought in federal court. Florida Dept. of Health v. Florida Nursing Home Assn., 450 U.S. 147, 101 S.Ct. 1032, 67 L.Ed.2d 132 (1981). See Shapiro, “Wrong Turns: The Eleventh Amendment and the Pennhurst Case”, 98 Harvard Law Review 61 (1984). The state may consent to such a suit but the consent must be expressed unequivocally. Clark v. Barnard, 108 U.S. 436, 2 S.Ct. 878, 27 L.Ed. 780 (1883); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). “Because of the problems of federalism inherent in making one sovereign appear against its will in the courts of the other, a restriction upon the exercise of the federal judicial power has long been considered to be appropriate ...” Employees of Dept. of Public Health & Welf. v. Missouri, 411 U.S. 279, 294, 93 S.Ct. 1614, 1622-1623, 36 L.Ed.2d 251 (Marshall, J., concurring). There is no evidence here that Illinois has expressly or clearly, through implication, waived its right to assert sovereign immunity in any court except its Court of Claims. Those cases in which the issue is raised have concluded that Illinois in fact has not waived its immunity against suit in federal court. Williamson Towing Co., Inc. v. State of Illinois, 396 F.Supp. 431 (E.D.Ill.1975); affirmed 534 F.2d 758 (7th Cir.1976). Congress, however, may waive a state’s immunity to suit in federal court if it does so expressly or through clear implication drawn from legislative history. Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). Section 106 of the Code, Title 11, U.S.C., sets out certain limited waivers of sovereign immunity. (a) A governmental unit is deemed to have waived sovereign immunity with respect to any claim against such governmental unit that is property of the estate and that arose out of the same transaction" }, { "docid": "7135967", "title": "", "text": "of the state’s intention that it or one of its agencies can “sue or be sued” does not waive immunity, Florida Dept. of Health and Rehabilitative Services v. Florida Nursing Home Ass’n, 450 U.S. 147, 149-50, 101 S.Ct. 1032, 1034, 67 L.Ed.2d 132 (1981); and a statement authorizing suits against the state or one of its agencies “in any court of competent jurisdiction,” does not waive .immunity. Kennecott Copper Corp. v. State Tax Comm’n, 327 U.S. 573, 577-79, 66 S.Ct. 745, 747, 90 L.Ed. 862 (1946). Second, mere participation in a federal program or an agreement to recognize and abide by federal laws, regulations, and guidelines is insufficient to waive Eleventh Amendment immunity. See Atascadero, 473 U.S. at 246-47, 105 S.Ct. at 3149-50 (holding that participation in federal programs and receipt of federal funds under such programs “fall[ ] far short of manifesting a clear intent ... to waive immunity”); Florida Nursing Home Ass’n, 450 U.S. at 150, 101 S.Ct. at 1034 (stating that state agency’s explicit agreement “to obey federal law in administering the federal program can hardly be deemed an express waiver of Eleventh Amendment immunity”); Edelman, 415 U.S. at 673-74, 94 S.Ct. at 1360-61 (holding that neither mere participation in a federal program nor a provision requiring compliance with federal law is sufficient to establish that the state consented to be sued in federal court). Like a waiver by state statute or constitutional provision, this method requires an unequivocal indication that the state intends to consent to be sued in federal court. Atascadero, 473 U.S. at 238 n. 1 & 241, 105 S.Ct. at 3145 n. 1 & 3146-47; College Sav. Bank, 527 U.S. at 679-83, 119 S.Ct. 2219, 2228-29, 144 L.Ed.2d 605 (rejecting Parden’s doctrine of constructive consent because it conflicts with the longstanding' requirement that a waiver of a constitutional right must be unequivocally expressed and altogether voluntary). Congress may legitimately condition a state’s receipt of federal funds and/or participation in a federal program upon a waiver of Eleventh Amendment immunity, but it must do so “unambiguously ... enabling] the States to exercise their choice" }, { "docid": "9576786", "title": "", "text": "Indeed, the North Carolina Supreme Court has used similar reasoning to hold that whenever the State enters into a valid contract, it implicitly waives its sovereign immunity in its own courts with respect to actions for breach of that contract. Smith v. State, 289 N.C. 303, 222 S.E.2d 412, 423-24 (1976). Under Smith, it is entirely possible that the North Carolina courts might read § 143-300.6(a) as waiving the State’s immunity from suit in its own courts with respect to actions to enforce the payment obligation it creates. But the question here is whether § 143-300.6(a) waives the State’s Eleventh Amendment immunity from suit in federal court, and it is settled that a State does not waive its Eleventh Amendment immunity merely by consenting to suit in its own courts. See Feeney, 495 U.S. at 306, 110 S.Ct. at 1873; Florida Dept. of Health & Rehab. Servs, v. Florida Nursing Home Ass’n, 450 U.S. 147, 150, 101 S.Ct. 1032, 1034, 67 L.Ed.2d 132 (1981). We are unaware of any authority for the proposition that a waiver of Eleventh Amendment immunity can be based on statutory or constitutional provisions that do not expressly authorize some sort of suit against the State. Cf. Edelman, 415 U.S. at 674, 94 S.Ct. at 1360 (statute which “by its terms did not authorize suit against anyone” could not waive Eleventh Amendment immunity). Indeed, the Supreme Court repeatedly has refused to hold that a State’s agreement to administer federal funds in accordance with certain standards implicitly waives its Eleventh Amendment immunity with respect to actions seeking to enforce those standards against it, absent an explicit agreement to consent to such suits. See Edelman, 415 U.S. at 673-74, 94 S.Ct. at 1360-61; Florida Dept. of Health & Rehab. Servs., 450 U.S. at 150, 101 S.Ct. at 1034. As the Court has explained, such notions of “implied” or “constructive” consent are “not ... commonly associated with the surrender of constitutional rights” and have “no place” in Eleventh Amendment waiver doctrine. Edelman, 415 U.S. at 673, 94 S.Ct. at 1360. And the lower federal courts uniformly have held that" }, { "docid": "13189515", "title": "", "text": "106(a) of the Bankruptcy Code may not be employed to involuntarily subject a sovereign state to suit in a federal bankruptcy court. Waiver and Consent to be Sued It is a long established principle that a state may waive its immunity under the Eleventh Amendment and consent to be sued in federal court. See, e.g., Clark v. Barnard, 108 U.S. 436, 447, 2 S.Ct. 878, 882-83, 27 L.Ed. 780 (1883). However, the Supreme Court has held that, “[t]he test for determining whether a State has waived its immunity from federal court jurisdiction is a stringent one.” Atascade-ro State Hospital v. Scanlon, 473 U.S. 284, 241, 105 S.Ct. 3142, 3146, 87 L.Ed.2d 171 (1985). There exist basically three methods by which a state may consent to be sued in federal court. The first, and most straightforward method, is an explicit waiver whereby a state expressly agrees to become subject to the jurisdiction of the federal courts. See Id. This is normally accomplished by the state declaring in its constitution, a statute, or a contract that it consents to the jurisdiction of the federal court. However, given the fact that Eleventh'Amendment waivers are disfavored, such a waiver will only be found where the state has declared its intent to waive its Eleventh Amendment immunity “by the most express language or by such overwhelming implication from the text as will leave no room for any other reasonable construction.” Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 1361, 39 L.Ed.2d 662 (1974) quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S.Ct. 458, 464, 53 L.Ed. 742 (1909). For example, a waiver by a state court of its sovereign immunity from suit in its own courts will not, standing alone, be construed to be a waiver of a state’s immunity from suit in the federal courts under the Eleventh Amendment. Johns v. Supreme Court of Ohio, 753 F.2d 524 (6th Cir.1985), certiorari denied, 474 U.S. 824, 106 S.Ct. 79, 88 L.Ed.2d 65, (1985) citing Florida Dept. of Health v. Florida Nursing Home Assn., 450 U.S. 147, 150, 101 S.Ct. 1032," } ]

[ { "docid": "22349842", "title": "", "text": "to appropriate to the payment of their claims the “full value” of the property, in accord with the principles of Consolidated Rock Products Co. v. Du Bois, supra, p. 529. The rule in equity receivership cases that the creditors were entitled to have the “value” (Northern Pacific Ry. Co. v. Boyd, supra, p. 508) or the “full value” (Kansas City Terminal Ry. Co. v. Central Union Trust Co., 271 U. S. 445, 454) of the property first appropriated to the satisfaction of their claims never was thought to require such valuations. Nor does the Consolidated Rock Products case or § 77 require them. We indicated in the Los Angeles Lumber Products case (308 U. S. p. 130) that compromises, settlements, and concessions are a normal part of the reorganization process. And see Marine Harbor Properties v. Manufacturers Trust Co., supra. We stated in the Consolidated Rock Products case (312 U. S. p. 526) that a determination of earning power of an enterprise “requires a prediction as to what will occur in the future, an estimate, as distinguished from mathematical certitude.” And in discussing the method by which creditors should receive “full compensatory treatment” for their rights, we emphasized, as already noted, that “Practical adjustments, rather than a rigid formula, are necessary.” Id. p. 529. Certainly those standards do not suggest any mathematical formula. We recently stated in another connection that, whatever may be “the pretenses of exactitude” in determining a dollar valuation for a railroad property, “to claim for it 'scientific’ validity, is to employ the term in its loosest sense.” Nashville, C. & St. L. Ry. v. Browning, 310 U. S. 362, 370. That is equally true here. A requirement that dollar values be placed on what each security holder surrenders and on what he receives would create an illusion of certainty where none exists and would place an impracticable burden on the whole reorganization process. See Bourne, Findings of “Value” in Railroad Reorganizations, 51 Yale L. Journ. 1057. It is sufficient that each security holder in the order of his priority receives from that which is available for" } ]

[ { "docid": "23268062", "title": "", "text": "a present contribution, not a contribution promised in the future. See, In re Pecht, 57 B.R. 137, 140-41 (Bankr.E.D.Va.1986); In re Stegall, 64 B.R. 296, 299 (Bankr.C.D.Ill.1986). Thus, Canyon’s promise of a future contribution is not properly included as an element of its proposed capital contribution. Under the Case decision, the Court is required to make a comparison between the value of the shareholder’s retained interest in the reorganized debtor and such shareholder’s new capital investment in order to determine whether the new investment equals or exceeds the retained interest in the corporation. 308 U.S. at 121, 60 S.Ct. at 10. See also, In re Potter Material Service, Inc., 781 F.2d at 101; In re Landau Boat Co., 13 B.R. at 792-93; In re Marston Enterprises, 13 B.R. 514, 518 (Bankr.E.D.N.Y.1981); In re Ag Consultants Grain Div., Inc., 77 B.R. at 677-78. As the foregoing discussion indicates, the Court is unable to ascertain the value of Canyon’s proposed capital contribution due to glaring deficiencies in the record. As the Court demonstrates below, the incomplete record made by the Proponents at hearing likewise precludes the Court from determining a value for Canyon’s retained interest in the reorganized debtor. As the Seventh Circuit has recently stated, “[t]he valuation of a corporate debtor is a complex task, requiring an evaluation of considerable data concerning the past, present, and future operations of the debt- or.” In re Potter Material Service, Inc., 781 F.2d at 104. The appropriate standard for valuing a company undergoing reorganization was articulated by the Supreme Court in Consolidated Rock Products Co. v. DuBois, 312 U.S. 510, 61 S.Ct. 675, 85 L.Ed. 982 (1941). The Court said: The criterion of earning capacity is the essential one if the enterprise is to be freed from the heavy hand of past errors, miscalculations or disaster, and if the allocation of securities among the various claimants is to be fair and equitable. Since its application requires a prediction as to what will occur in the future, an estimate, as distinguished from mathematical certitude, is all that can be made. But that estimate must be" }, { "docid": "18584498", "title": "", "text": "each case. However, the value of the farmer’s labor, including the value of his experience and expertise in farming the land, should not be overly difficult to determine. Valuing the retained equitable ownership interest, however, is a more difficult problem. In In re U.S. Truck the court stated that in determining the general worth of the retained interest, a court must necessarily make determinations regarding the future of the debtor as reorganized, and its possible profits. 47 B.R. at 941-42 (citing In re Landau Boat Co., 13 B.R. 788 (Bankr.W.D.Mo.1981)). In Landau Boat the creditors argued that the shareholders were retaining equity value without consideration because the debtor corporation, as an ongoing business, was worth more than the shareholders’ new contribution. The court in Landau Boat stated: The commercial value of property consists in the expectation of income from it * * *. Such criterion is the appropriate one here, since we are dealing with the issue of solvency arising in connection with reorganization plans involving productive properties * * *. The criterion of earning capacity is the essential one * * * if the allocation of securities among the various claimants is to be fair and equitable * * *. Since its application requires a prediction as to what will occur in the future, an estimate, as distinguished from mathematical certitude, is all that can be made. But that estimate must be based on an informed judgment which embraces all facts relevant to future earnings capacity and hence to present worth, including, of course, the nature and condition of the properties, the past earnings record, and all circumstances which indicate whether or not that record is a reliable criterion of future performance. 13 B.R. at 792-93 (quoting Consolidated Rock Products v. DuBois, 312 U.S. 510, 526, 61 S.Ct. 675, 685, 85 L.Ed. 982 (1941)). The court found that the debtors’ corporation had the potential to be profitable. Landau Boat, 13 B.R. at 793. However, after considering the debtor’s financial needs, including debt service, the state of the economy, and the fact that the debtor was in a highly competitive" }, { "docid": "14307203", "title": "", "text": "Bankruptcy Act, 11 U.S.C.A. § 207; Consolidated Rock Products Co. v. Du Bois, 312 U.S. 510, 61 S.Ct. 675, 85 L.Ed. 982; Case v. Los Angeles Lumber Products Co., 308 U.S. 106, 60 S. Ct. 1, 84 L.Ed. 110. In the Milwaukee opinion, supra, Mr. Justice Douglas stated, loc. cit. 751 of 63 S.Ct., 87 L.Ed. —: “The rule of the Boyd case ‘protects the rights of senior creditors against dilution either by junior creditors or by equity interests.’ Marine Harbor Properties, Inc. v. Manufacturer’s Trust Co., supra (317 U.S. 87, 63 S.Ct. 98, 87 L.Ed.-). That view has not been contested here. Hence, as we indicated in the Consolidated Rock Products case, where junior interests participate in a plan and where the senior creditors are allotted only a face amount of inferior securities equal to the face amount of their claims, they ‘must receive, in addition, compensation for the senior rights which they are to surrender.’ 312 U.S. 529, 61 S.Ct. 686, 84 L.Ed. 110. And we stated that whether they should ‘be made whole for the change in or loss of their seniority by an increased participation in assets, in earnings or in control, or in any combination thereof, will be dependent on the facts and requirements of each case.’ Id., 312 U.S. page 529, 61 S.Ct. page 686. We felt that result was made necessary by the ruling in the Boyd case that, ‘If the value of the road justified the issuance of stock in exchange for old shares, the creditors were entitled to the benefit of that value, whether it was present or prospective, for dividends or only for purposes of control.’ 228 U.S. page 508, 33 S.Ct. page 561, 57 L.Ed. 931. We adhere to that view. Unless that principle is respected, there will be serious invasions of the rights of senior claimants to the benefit of junior interests. The property of one group will be subtly appropriated to pay the claims of another while lip service is rendered the principles of priority. “Some argument is advanced that under this plan the General Mortgage bondholders" }, { "docid": "1175353", "title": "", "text": "because debtor, as a going business, is worth more than the investors are paying. Reynolds points to the testimony of Heck, the witness offered by debtor, who stated that a boat builder should be capitalized at 4 to 8 times earnings in these times. Since other testimony predicted profits in 1982 and 1983, Reynolds contends that the true value of the debtor is about $240,000 and therefore the investment is insufficient. “The commercial value of property consists in the expectation of income from it .... Such criterion is the appropriate one here, since we are dealing with the issue of solvency arising in connection with reorganization plans involving productive properties .... The criterion of earning capacity is the essential one .. . if the allocation of securities among the various claimants is to be fair and equitable .... Since its application requires a prediction as to what will occur in the future, an estimate, as distinguished from mathematical certitude, is all that can be made. But that estimate must be based on an informed judgment which embraces all facts relevant to future earnings capacity and hence to present worth, including, of course, the nature and condition of the properties, the past earnings record, and all circumstances which indicate whether or not that record is a reliable criterion of future performance.” Consolidated Rock Products v. DuBois, 312 U.S. 510, 526, 61 S.Ct. 675, 685, 85 L.Ed. 982 (1941). Debtor presently rents a portion of its manufacturing facility to another aluminum boat maker, who is apparently profitable. There is no evidence as to that other boat maker’s gross sales or whether its product competes with that produced by debtor. Debtor has stated that it will evict the other boat maker at the end of 1981 if the plan is confirmed for it will need all the space for projected manufacturing. Debtor projects that in the 1982 manufacturing season, it will earn $16,000 before taxes and in the 1983 manufacturing season it will earn $80,000 before taxes. Both of these estimates are based upon gross of $2,000,000 or over and profits are calculated" }, { "docid": "5132482", "title": "", "text": "B.R. 788 (Bankr.W.D.Mo.1981); In re Marston Enterprises, 13 B.R. 514 (Bankr.E.D.N.Y.1981). The new capital investment must (1) represent a substantial contribution and (2) equal or exceed the value of the retained interest in the corporation. See, Case, 308 U.S. 121, 60 S.Ct. at 10; Landau Boat, 13 B.R. at 792-93; Marston Enterprises, 13 B.R. at 518.” Id. at 101. Further: “The Supreme Court set out the appropriate standard for evaluating a company, undergoing reorganization in Consolidated Rock Products Co. v. DuBois, 312 U.S. 510, 61 S.Ct. 675, 85 L.Ed. 982 (1941). The court said: “The criterion of earning capacity is the essential one if the. enterprise is to be freed from the heavy hand of past errors, miscalculations or disaster, and if the allocation of securities among the various claimants is to be fair and equitable. Since its application requires a prediction as to what will occur in the future, an estimate, as distinguished from mathematical certitude, is all that can be made. But that estimate must be based on an informed judgment which embraces all facts relevant to future earning capacity and hence to present worth, including, of course, the nature and condition of the properties, the past earnings record, and all circumstances which indicate whether or not that record is a reliable criterion of future performance. A sum of values based on physical factors and assigned to separate units of the property without regard to the earning capacity of the whole enterprise is plainly inadequate_ The Circuit Court of Appeals correctly left the matter of formal apprisal to the discretion of the District Court. The extent and method of inquiry necessary for a valuation based on earning capacity are necessarily dependent on the facts of each case. Id. at 526-27, 61 S.Ct. at 685 (citations omitted) (emphasis added).” Id. at 104. It is conceded by Hancock that if the Plan is rejected and liquidation of the assets ensues, it would not recover any money on its unsecured claim. To avoid this eventuality, the Debtor proposed to invest from his non-farm patent income, the sum of $40,000.00 to $60,000.00" }, { "docid": "23424875", "title": "", "text": "has developed in the application of the word “feasible” in Chapter X of the present Act”. The word “feasible” is not defined in the Code or in the Act. In a reorganization under Chapter X of the Bankruptcy Act, a plan could be confirmed if, inter alia, it was “fair and equitable, and feasible”. These questions are addressed to the “informed, independent judgment” of the Court. National Surety Co. v. Coriell, 289 U.S. 426, 436, 53 S.Ct. 678, 681, 77 L.Ed. 1300 (1933); Consolidated Rock Products Co. v. duBois, 312 U.S. 510, 61 S.Ct. 675, 85 L.Ed. 982 (1941). Feasibility is to be determined upon the evidence. “Findings as to the earning capacity of an enterprise are essential to a determination of the feasibility ... of a plan of reorganization. Whether or not the earnings may reasonably be expected to meet the interest and dividend requirements of the new securities is a sine qua non to a determination of the integrity and practicality of the new capital struc ture ... Such criterion is the appropriate one here, since we are dealing with the issue of solvency arising in connection with reorganization plans involving productive properties_ Since its application requires a prediction as to what will occur in the future, an estimate, as distinguished from mathematical certitude, is all that can be made. But that estimate must be based on an informed judgment which embraces all facts relevant to future earning capacity ...” Consolidated Rock Products Co. v. duBois, supra, 312 U.S. at 525-526, 61 S.Ct. at 685. The rule is followed in this jurisdiction. Temmer v. Denver Tramway Co., 18 F.2d 226 (8th Cir.1927); In re Landau Boat Co., 13 B.R. 788 (Bkrtcy.W.D.Mo.1981). The Court is obligated to evaluate past earnings to determine if they are “a reliable criterion of future performance” and, if not, to make “an estimate of future performance by inquiring into all foreseeable factors which may affect future prospects. In forming this estimate, ‘mathematical certitude’ is neither expected nor required”. Protective Com. for Ind. Stock v. Anderson, 390 U.S. 414, 452, 88 S.Ct. 1157, 1177, 20" }, { "docid": "17944289", "title": "", "text": "Matter of D & F Construction, Inc., 865 F.2d 673, 675 (5th Cir.1989), the court there rejected an attempted secured party cram down which called for negative amortization. It did so because it regarded this type of payment to be unreasonable and therefore not fair and equitable. This holding disregards Justice Douglas’s \"words of art.” It is also unnecessary. If negative amortization prevented the stream of payments from having a present value equal to the value of the security interest, the court should have held that the payments failed the present value requirement of § 1129(b)(2)(A). . E.g., Klee, Cram Down II, 64 AM.BANKR.L.J. 229 (1990); Blum & Kaplan, The Absolute Priority Doctrine in Corporate Reorganization, 41 U.CHI.L.REV. 651 (1974); Billyou, Priority Rights of Security Holders in Bankruptcy Reorganizations: New Directions, 67 HARV.L.REV. 553 (1954); Blum, The \"New Directions” of Priority Rights in Bankruptcy Reorganizations, 67 HARV. L.REV. 1367(1954); Billyou, “New Directors”: A Further Comment, 67 HARV.L.REV. 1379 (1954). . Blum, The Law and Language of Corporate Reorganization, 17 U.CHI.L.REV. 565, 570 (1950). . The classic description of this valuation process is contained in Consolidated Rock Products Co., v. DuBois, 312 U.S. 510, 526, 61 S.Ct. 675, 685, 85 L.Ed. 982 (1941): The criterion of earning capacity is the essential one if the enterprise is to be freed from the heavy hand of past errors, miscalculation or disaster, and if the allocation of securities among the various claimants is to be fair and equitable.... Since its application requires a prediction as to what will occur in the future, an estimate, as distinguished from mathematical certitude, is all that can be made. But that estimate must be based on an informed judgment which embraces all facts relevant to future earning capacity and hence to present worth, including, of course, the nature and condition of the properties, the past earnings record, and all circumstances which indicate whether or not that record is a reliable criterion of future performance. See also Gardner, The SEC and Valuation Under Chapter X, 91 U.PA.L.REV. 440 (1943); Blum, Corporate Reorganizations Based on Cash Flow Evaluations, 38 U.CHI.L.REV." }, { "docid": "22602417", "title": "", "text": "at length in Con solidated Rock Products Co. v. Du Bois, 312 U. S. 510, 526 (1941): “As Mr. Justice Holmes said in Galveston, H. & S. A. Ry. Co. v. Texas, 210 U. S. 217, 226, The commercial value of property consists in the expectation of income from it.’. . . Such criterion is the appropriate one here, since we are dealing with the issue of solvency arising in connection with reorganization plans involving productive properties. . . . The criterion of earning capacity is the essential one if the enterprise is to be freed from the heavy hand of past errors, miscalculations or disaster, and if the allocation of securities among the various claimants is to be fair and equitable. . . . Since its application requires a prediction as to what will occur in the future, an estimate, as distinguished from mathematical certitude, is all that can be made. But that estimate must be based on an informed judgment which embraces all facts relevant to future earning capacity and hence to present worth, including, of course, the nature and condition of the properties, the past earnings record, and all circumstances which indicate whether or not that record is a reliable criterion of future performance.” In the present case the book value of the debtor’s assets on May 31, 1962, was $1,887,185.77. Claims against the debtor totaled $5,477,370.05. The actual fair value of the debtor’s total assets was $2,238,387.62 and their net value was $1,978,481.73. Although these figures show that liabilities far exceeded assets, they are not of controlling importance. The District Court recognized that going-concern value, not book or appraisal value, must govern determination of the fairness of the plans of reorganization, and respondent concedes that the value of TMT’s business depended “not on the inherent value of its assets but primarily on maintaining a high level of earnings.” Brief for Respondent 42. At the valuation hearings the trustee stated that his analysis of the financial structure and business of the debtor resulted in a going-concern value of $2,031,403.72. A valuation expert presented by the trustee estimated" }, { "docid": "2227218", "title": "", "text": "plain that, if Sirrine’s award did not comply with the language of the contract, it is not binding. The gist of that paragraph is the provision that Woodstock must he valued “as a going concern in the light of the past, present and prospective future earnings and the net worth of said business.” We have commented before on the difficulty involved in giving a precise meaning to the ambiguous word “value.” Methods of valuation vary with the legal contexts in which the valuation problems arise. But this, at least, is clear: When an enterprise is to he valued “as a going concern,” the valuer must consider whether it has a “going concern” value, and that value is something other than what results from the mere appraisal value of its assets “The commercial value of property consists in the expectation of income from it,” Galveston, H. & S. A. Ry. Co. v. Texas, 210 U.S. 217, 226, 28 S.Ct. 638, 639, 52 L. Ed. 1031. “The Supreme Court has several times said that the best test of the value of a going commercial enterprise is its earning capacity.” Dudley v. Mealey, 2 Cir., 147 F.2d 268, 270. Where the valuation of a going concern was required for the purposes of a corporate reorganization, the Supreme Court said that the expectation of income was the proper criterion, and added: “Since its application requires a prediction as to what will occur in the future, an estimate, as distinguished from mathematical certitude, is all that can be made. But that estimate must be based on an informed judgment which embraces all facts relevant to future earning capacity and hence to present worth, including, of course, the nature and condition of the properties, the past earnings record, and all circumstances which indicate whether or not that record is a reliable criterion of future performance.” Consolidated Rock Products Co. v. Du Bois, 312 U.S. 510, 526, 61 S.Ct. 675, 685, 85 L.Ed. 982. The appraiser here, in his answers to the interrogatories, maintained that he had estimated the value of Woodstock as a going concern, and" }, { "docid": "18584499", "title": "", "text": "capacity is the essential one * * * if the allocation of securities among the various claimants is to be fair and equitable * * *. Since its application requires a prediction as to what will occur in the future, an estimate, as distinguished from mathematical certitude, is all that can be made. But that estimate must be based on an informed judgment which embraces all facts relevant to future earnings capacity and hence to present worth, including, of course, the nature and condition of the properties, the past earnings record, and all circumstances which indicate whether or not that record is a reliable criterion of future performance. 13 B.R. at 792-93 (quoting Consolidated Rock Products v. DuBois, 312 U.S. 510, 526, 61 S.Ct. 675, 685, 85 L.Ed. 982 (1941)). The court found that the debtors’ corporation had the potential to be profitable. Landau Boat, 13 B.R. at 793. However, after considering the debtor’s financial needs, including debt service, the state of the economy, and the fact that the debtor was in a highly competitive business, the court concluded that the probability of the debtor making a real profit in the next few years was unlikely. Id. Thus, the court found that the new investors were making a substantial investment which exceeded any value that could be realized from the business in the near future. Id. Applying these principles to the present case, the Ahlers would not realize any real profit or benefit from their retained equitable ownership interest until the reorganization plan was completed and the secured creditors had been paid the full amount of their allowed secured claims. At this time, the equitable ownership interest would mature. Thus, if the bankruptcy court determines that the value of the Ah- lers’ yearly contributions of labor, experience, and expertise over the life of the plan will equal or exceed the value of the retained ownership interest at maturity, the dissenting unsecured creditors cannot complain that they have not been accorded their full right of priority against the debtors’ assets. We recognize, of course, that because the profitability of any reorganization" }, { "docid": "1086468", "title": "", "text": "income to the exclusion of other evidence as projections of farm income are for the most part totally speculative. Although it can be argued that projections of any source of income is speculative, this fact is especially true in the context of a farm reorganization. Projections of farm income and expenses are not an “exact science,” In re Monnier Brothers, 755 F.2d 1336, 1341 (8th Cir.1985). “In a farm economy, projections over long periods of time are treacherous. Markets are subject to wide swings. Weather is never predictable. Government programs come and go.” In re Fursman Ranch, 38 B.R. 907, 912 (Bankr.W.D.Mo.Bkrtcy.1984). In short, the bankruptcy court should not be relegated to the role of an adding machine in determining the feasibility of a farm reorganization. As stated by the Supreme Court in Protective Com. for Ind. Stock v. Anderson, 390 U.S. 414, 452, 88 S.Ct. 1157, 1177, 20 L.Ed.2d 1 (1968) in estimating future performance “ ‘mathematical certitude’ is neither expected nor required.” While findings as to the earning capacity of an enterprise are essential to a determination of feasibility, a prediction as to what will occur in the future, an estimate, as distinguished from mathematical certitude, is all that can be made.” Consolidated Rock Products Co. v. du Bois, 312 U.S. 510, 525-26, 61 S.Ct. 675, 685, 85 L.Ed. 982 (1941). While no doubt exists that a plan must be mathematically possible, there is no requirement that it be mathematically certain. To adopt the standard of review urged by the Land Bank would result in a wooden application of the law which would run counter to the letter and spirit of the Bankruptcy Code and which could potentially operate to the detriment of other creditors who would benefit from the debtors’ reorganization as compared to a straight liquidation of the debtors’ estate. The Bankruptcy Court must not be servant to the best interest of one specific creditor at the expense of other creditor’s interests. Rather, it is the Court’s duty to protect the rights of all of the parties and to provide for the orderly administration of the" }, { "docid": "9575818", "title": "", "text": "also Marine Harbor Properties, Inc. v. Manufacturer’s Trust Co., 317 U.S. 78, 63 S.Ct. 93, 87 L.Ed. 64 (1942). In most cases this means that the shareholders of the debtor corporation have no right to participate in the new corporation until all the claims of creditors have been satisfied in cash or by some other method agreeable to them. Thus, if the corporation is insolvent, if the total of its assets is less than its liabilities, then there is no room in the new corporation for the old shareholders unless they contribute fresh capital. Otherwise, they benefit at the expense of creditors who have not been satisfied commensurate with their pre-existing priorities over the shareholders. In order to measure the fairness of a plan as between creditors and shareholders, some valuation of the debt- or corporation must be made to determine the issue of solvency or insolvency and so provide a guide for the apportionment of interests in the new reorganized business. Consolidated Rock Products Co. v. Du Bois, 312 U.S. 510, 524, 61 S.Ct. 675, 85 L.Ed. 982 (1941). Although property may be valued in several ways, the courts have long held that earning capacity, the capitalization of future profits, is the appropriate method of valuation in connection with Chapter X proceedings. Consolidated Rock Products Co. v. Du Bois, supra at 526, 61 S.Ct. 675. This is because the very purpose of Chapter X is to preserve the going concern value of a business through the continuation of operations, and so avoid the uneconomic expedient of a forced sale of the assets. The sole issue that emerges here from the welter of charts, projections, audits, appraisals, expert opinion, and other evidence is the propriety of the District Court’s determination that Muskegon was insolvent. Insolvency was a question of fact to be determined by the District Court from all of the evidence. We do not hear this case de novo. Our function is only to determine whether the order of the District Court finding Muskegon insolvent is supported by substantial evidence. We have no right to disturb it unless we" }, { "docid": "5132481", "title": "", "text": "limiting. Klee, supra, at 142, Ftn. 72, for § 102(3) states: “(3) ‘includes’ and ‘including’ are not limiting;” Thus, proper statutory construction dictates that by using the term “includes” in § 1129(b)(2), Congress clearly intended that the examples set forth in that section are not limiting but rather invite an open ended approach; such as the exception set forth in Los Angeles Lumber. Not only does this result comport with legislative intent and history, but as a practical matter, the infusion of new capital in a reorganized entity to keep the enterprise alive is a desirable, and compatible, approach to a Chapter 11 reorganization effort. Thus, I adopt the rationale of In re Potter Material Service, Inc., 781 F.2d 99 (7th Cir.1986), which holds in discussing § 1129(b)(2)(B)(ii): “An equity-interest owner may retain an interest in the debtor corporation so long as the owner invests new capital into the corporation. See Case v. Los Angeles Lumber Products Co. Ltd., 308 U.S. 106, 60 S.Ct. 1, 84 L.Ed. 110 (1939); In re Landau Boat Co., 13 B.R. 788 (Bankr.W.D.Mo.1981); In re Marston Enterprises, 13 B.R. 514 (Bankr.E.D.N.Y.1981). The new capital investment must (1) represent a substantial contribution and (2) equal or exceed the value of the retained interest in the corporation. See, Case, 308 U.S. 121, 60 S.Ct. at 10; Landau Boat, 13 B.R. at 792-93; Marston Enterprises, 13 B.R. at 518.” Id. at 101. Further: “The Supreme Court set out the appropriate standard for evaluating a company, undergoing reorganization in Consolidated Rock Products Co. v. DuBois, 312 U.S. 510, 61 S.Ct. 675, 85 L.Ed. 982 (1941). The court said: “The criterion of earning capacity is the essential one if the. enterprise is to be freed from the heavy hand of past errors, miscalculations or disaster, and if the allocation of securities among the various claimants is to be fair and equitable. Since its application requires a prediction as to what will occur in the future, an estimate, as distinguished from mathematical certitude, is all that can be made. But that estimate must be based on an informed judgment which embraces" }, { "docid": "23268063", "title": "", "text": "made by the Proponents at hearing likewise precludes the Court from determining a value for Canyon’s retained interest in the reorganized debtor. As the Seventh Circuit has recently stated, “[t]he valuation of a corporate debtor is a complex task, requiring an evaluation of considerable data concerning the past, present, and future operations of the debt- or.” In re Potter Material Service, Inc., 781 F.2d at 104. The appropriate standard for valuing a company undergoing reorganization was articulated by the Supreme Court in Consolidated Rock Products Co. v. DuBois, 312 U.S. 510, 61 S.Ct. 675, 85 L.Ed. 982 (1941). The Court said: The criterion of earning capacity is the essential one if the enterprise is to be freed from the heavy hand of past errors, miscalculations or disaster, and if the allocation of securities among the various claimants is to be fair and equitable. Since its application requires a prediction as to what will occur in the future, an estimate, as distinguished from mathematical certitude, is all that can be made. But that estimate must be based on an informed judgment which embraces all facts relevant to future earning capacity and hence to present worth, including, of course, the nature and condition of the properties, the past earnings record, and all circumstances which indicate whether or not that record is a reliable criterion of future performance. A sum of values based on physical factors and assigned to separate units of the property without regard to the earning capacity of the whole enterprise is plainly inadequate. ... The Circuit Court of Appeals correctly left the matter of a formal appraisal to the discretion of the District Court. The extent and method of inquiry necessary for a valuation based on earning capacity are necessarily dependent on the facts of each case. Id. at 526-27, 61 S.Ct. at 685 (citations omitted) (emphasis added). The method of valuing a shareholder’s retained interest which was set forth in Consolidated Rock Products has been followed almost universally by subsequent decisions. See, e.g., In re Potter Material Service, Inc., 781 F.2d at 103-04; In re Landau Boat Co.," }, { "docid": "17944290", "title": "", "text": "classic description of this valuation process is contained in Consolidated Rock Products Co., v. DuBois, 312 U.S. 510, 526, 61 S.Ct. 675, 685, 85 L.Ed. 982 (1941): The criterion of earning capacity is the essential one if the enterprise is to be freed from the heavy hand of past errors, miscalculation or disaster, and if the allocation of securities among the various claimants is to be fair and equitable.... Since its application requires a prediction as to what will occur in the future, an estimate, as distinguished from mathematical certitude, is all that can be made. But that estimate must be based on an informed judgment which embraces all facts relevant to future earning capacity and hence to present worth, including, of course, the nature and condition of the properties, the past earnings record, and all circumstances which indicate whether or not that record is a reliable criterion of future performance. See also Gardner, The SEC and Valuation Under Chapter X, 91 U.PA.L.REV. 440 (1943); Blum, Corporate Reorganizations Based on Cash Flow Evaluations, 38 U.CHI.L.REV. 173 (1970). . E.g., Protective Committee for Ind. Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 441-54, 88 S.Ct. 1157, 1172-78, 20 L.Ed.2d 1 (1967) (trial judge’s finding of insolvency reversed, despite declining earnings, primarily because of debtor’s potential for further volume increases only obtainable through acquisition of new equipment). . Blum, The Law and Language of Corporate Reorganization, 17 U.CHI.L.REV. 565, 578 (1950). . See, e.g., Anderson, supra note 18. . Current market value is always irrelevant in determining reorganization value, even though the shares are publicly traded, because it is the future business that is actually being valued. Blum, The Law and Language of Corporate Reorganization, 17 U.CHI.L.REV. 565 (1950). . If the FDIC were bidding at a sale of the real estate alone, it could offset the entire amount of its claim, secured and unsecured, against the purchase price. 11 U.S.C. § 363(k) (1991). That cannot be done with respect to its secured claim in this stock sale; the secured claim is to be separately dealt with under the" }, { "docid": "1828371", "title": "", "text": "amount of their claims. 11 U.S.C. § 1129(b)(1), 7-1129 Collier On Bankruptcy ¶ 1129.05[3] (2009) (“Put another way, if equity is to be eliminated, ... then equity holders can force a valuation of the reorganized debtor to ensure that whoever does receive the equity interests in that entity will not be overcompensated.”) It has been aptly observed that “entity valuation is much like ‘a guess compounded by an estimate.’ ” Id. quoting Peter Coogan, Confirmation of a Plan Under the Bankruptcy Code, 32 Case W.Res. L.Rev. 301, 313 n. 62 (1982). “Regardless of the method used, the result will rarely, if ever, be without doubt or variation. As the [United States] Supreme Court has put it: Since its application requires a prediction as to what will occur in the future, an estimate, as distinguished from mathematical certitude, is all that can be made. But that estimate must be based on an informed judgment which embraces all facts relevant to future earning capacity and hence to present worth, including, of course, the nature and condition of the properties, the past earnings record, and all circumstances which indicate whether or not that record is a reliable criterion of future performance.” 7-1129 Collier on Bankruptcy ¶ 1129.05[3][c] quoting Consolidated Rock Prods. Co. v. du Bois, 312 U.S. 510, 526, 61 S.Ct. 675, 684-85, 85 L.Ed. 982, 991 (1941). The Debtors argue that the Plan is con-firmable no matter what value the Court determines for the Debtors. However, a number of other issues surrounding confirmation, specifically whether the Plan is offered in good faith, as required by § 1129(a)(3), and is fair and equitable to the dissenting class, as required by § 1129(b)(1), require an analysis of the Debtors’ value. As directed by the Supreme Court in Consolidated Rock, my determination of value must be informed by the record before me. Some plan objectors argue that the Debtors’ value is best determined by referring to the active market for buying claims. There is some evidence before me about the amounts being paid for the various types of claims (Tr. 3/1/2010 at 301:2— 11 (Morgner));" }, { "docid": "2227219", "title": "", "text": "of the value of a going commercial enterprise is its earning capacity.” Dudley v. Mealey, 2 Cir., 147 F.2d 268, 270. Where the valuation of a going concern was required for the purposes of a corporate reorganization, the Supreme Court said that the expectation of income was the proper criterion, and added: “Since its application requires a prediction as to what will occur in the future, an estimate, as distinguished from mathematical certitude, is all that can be made. But that estimate must be based on an informed judgment which embraces all facts relevant to future earning capacity and hence to present worth, including, of course, the nature and condition of the properties, the past earnings record, and all circumstances which indicate whether or not that record is a reliable criterion of future performance.” Consolidated Rock Products Co. v. Du Bois, 312 U.S. 510, 526, 61 S.Ct. 675, 685, 85 L.Ed. 982. The appraiser here, in his answers to the interrogatories, maintained that he had estimated the value of Woodstock as a going concern, and had based that value on “what it could be sold for if you had a willing buyer and a willing seller.” This latter basis, it might be noted, is the usual test when an appraisal is made of property seized in a condemnation case. We do not hold that here the test was wrong as such. But it should have been qualified: it should have been “what a willing buyer would pay a willing seller of a going concern” Obviously, a willing-buyer would be unlikely to purchase an operating cotton mill without considering its operating costs and profits. But Sirrine’s answers show that he came to his conclusion without considering the operating profits or net earnings of Woodstock for the five years of that corporation’s operations under its then management, despite the express language of the contract that the value should be “in the light of past, present and prospective future earnings.” Whether, in the light of war conditions, Sirrine, if he had considered the operating profits, would have adhered to his conclusion that the" }, { "docid": "1129344", "title": "", "text": "too heavily on the recent financial problems of Potter and giving virtually no weight to Potter’s future projections which Ochstein supplied to support the feasibility of the Second Amended Plan. The Supreme Court set out the appropriate standard for evaluating a company undergoing reorganization in Consolidated Rock Products Co. v. Du Bois, 312 U.S. 510, 61 S.Ct. 675, 85 L.Ed. 982 (1941). The Court said: The criterion of earning capacity is the essential one if the enterprise is to be freed from the heavy hand of past errors, miscalculations or disaster, and if the allocation of securities among the various claimants is to be fair and equitable. Since its application requires a prediction as to what will occur in the future, an estimate, as distinguished from mathematical certitude, is all that can be made. But that estimate must be based on an informed judgment which embraces all facts relevant to future earning capacity and hence to present worth, including, of course, the nature and condition of the properties, the past earnings record, and all circumstances which indicate whether or not that record is a reliable criterion of future performance. A sum of values based on physical factors and assigned to separate units of the property without regard to the earning capacity of the whole enterprise is plainly inadequate.... The Circuit Court of Appeals correctly left the matter of a formal appraisal to the discretion of the District Court. The extent and method of inquiry necessary for a valuation based on earning capacity are necessarily dependent on the facts of each case. Id. at 526-27, 61 S.Ct. at 685 (citations omitted) (emphasis added). The district court correctly made an informed judgment after looking at all the relevant facts in this case. The court based its valuation of Potter upon “the Debtor’s past earnings record, the state of the economy, the highly competitive nature of the Debtor’s business, the present financial position of the Debtor and the Debtor’s projections of future earnings.” The valuation of a corporate debtor is a complex task, requiring an evaluation of considerable data concerning the past, present," }, { "docid": "17335064", "title": "", "text": "junior mortgagees. See Group of Institutional Investors v. Chicago, Milwaukee, St. Paul & Pacific Railroad, 318 U.S. at 562-63, 63 S.Ct. at 748; Consolidated Rock Products Co. v. Du Bois, 312 U.S. 510, 520-21, 61 S.Ct. 675, 682, 85 L.Ed. 982 (1941). But, contrary to the suggestions of the SEC, Reply Brief of SEC at 8-9, that rule also protects the rights of senior unsecured creditors vis-a-vis subordinated unsecured creditors. It is the right of priority that must be protected. See Group of Institutional Investors v. Chicago, Milwaukee, St. Paul & Pacific Railroad, 318 U.S. at 569 — 70, 63 S.Ct. at 751; Marine Harbor Properties, Inc. v. Manufacturers Trust Co., 317 U.S. 78, 86-87, 63 S.Ct. 93, 97-98, 87 L.Ed. 64 (1942). Whether the senior creditors have been fully compensated depends upon many factors. Valuation data must be considered by the court in order to ensure fairness. Consolidated Rock Products Co. v. Du Bois, 312 U.S. at 520, 61 S.Ct. at 682. However, the court need not set exact dollar values on the securities surrendered and received by each creditor, for that “would create an illusion of certainty where none exists and would place an impracticable burden on the whole reorganization process.” Group of Institutional Investors v. Chicago, Milwaukee, St. Paul & Pacific Railroad, 318 U.S. at 565, 63 S.Ct. at 749. Rather, the court is to determine that each creditor, in the order of his priority, has received the full “equitable equivalent” of the rights he surrenders. Id. This determination, based upon a consideration of all the facts and circumstances of the case, lies within the informed judgment and sound discretion of the trial court. Id. at 565-66, 571, 63 S.Ct. at 749, 752; Consolidated Rock Products Co. v. Du Bois, 312 U.S. at 529-30, 61 S.Ct. at 686-87. Inherent imprecision and uncertainty make valuation difficult when any large business undergoes Chapter X reorganization proceedings. The Supreme Court has recognized this uncertainty. In discussing the problems involved in appraising earning capacity, the Court noted: “Since its application requires a prediction as to what will occur in the future," }, { "docid": "14307202", "title": "", "text": "to approve the same.” The first objection is based on the rule announced by Mr. Justice Douglas in the Milwaukee case, supra, that where a senior lienor receives securities in reorganization, including junior securities, of the face amount of his former lien, and junior lienors likewise participate in the reorganization plan, then the senior lienor must be given something additional to fully compensate him for his loss of seniority. And it was further held that it is the duty of the Interstate Commerce Commission and the District Court to weigh the value of the new securities given the senior lienor and determine whether in the matter of increased participation in earnings, assets or control, they yield valuable new rights which are sufficient to compensate the senior lienor for his loss of seniority. Under the old equity practice which antedates Section 77, the “full priority” rule was announced in the case of Northern Pacific Ry. Co. v. Boyd, 228 U.S. 482, 33 S.Ct. 554, 57 L.Ed. 931. This rule was incorporated in Section 77B of the Bankruptcy Act, 11 U.S.C.A. § 207; Consolidated Rock Products Co. v. Du Bois, 312 U.S. 510, 61 S.Ct. 675, 85 L.Ed. 982; Case v. Los Angeles Lumber Products Co., 308 U.S. 106, 60 S. Ct. 1, 84 L.Ed. 110. In the Milwaukee opinion, supra, Mr. Justice Douglas stated, loc. cit. 751 of 63 S.Ct., 87 L.Ed. —: “The rule of the Boyd case ‘protects the rights of senior creditors against dilution either by junior creditors or by equity interests.’ Marine Harbor Properties, Inc. v. Manufacturer’s Trust Co., supra (317 U.S. 87, 63 S.Ct. 98, 87 L.Ed.-). That view has not been contested here. Hence, as we indicated in the Consolidated Rock Products case, where junior interests participate in a plan and where the senior creditors are allotted only a face amount of inferior securities equal to the face amount of their claims, they ‘must receive, in addition, compensation for the senior rights which they are to surrender.’ 312 U.S. 529, 61 S.Ct. 686, 84 L.Ed. 110. And we stated that whether they should ‘be made" } ]

[ { "docid": "12340290", "title": "", "text": "present one) in which the task of statutory construction involves an inquiry into which of two antecedents a single later phrase or clause addresses (In re Thompson, 79 Ill.2d 262, 265, 37 Ill.Dec. 607, 609, 402 N.E.2d 609, 611 (1980)). In any event, if this Court’s mention of the Latin maxim had somehow misled the prosecutor into the current motion to reconsider, apologies would be in order — but a reading of the United States’ current memorandum reflects that the persistent misreading of the operative Section 845a language remains entirely that of the prosecutor. On the facts of this case, Testa and his codefendants allegedly kept a large quantity of cocaine (20 kilograms!) in a so-called stash house that was located within 1,000 feet of a public high school. That location however was maintained only for storage purposes — counsel for the government concedes that the United States has no evidence from which an intention to distribute the cocaine near the high school was involved (rather the situation was one in which defendants assertedly intended to move the cocaine, when the time for distribution arrived, from the stash house to a location away from the high school for that purpose). Here is the conduct for which Section 845a (and now Section 860) provides an enhanced penalty: Any person who violates section 841(a)(1) ... of this' title by distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within one thousand feet of, the real property comprising a public or private elementary, vocational, or secondary school.... At the first step of analysis, the government has the reading of the statute right (Government Response Mem. filed April 25, 1991 at 2): An examination of the statute, as amended, shows Congress intended to provide an enhanced penalty for three separate and distinct offenses, specifically: 1) distributing a controlled substance in or on, or within one thousand feet of a school; 2) possessing with intent to distribute a controlled substance in or on, or within one thousand feet of a school; and 3) manufacturing a controlled substance in or" } ]

[ { "docid": "7988295", "title": "", "text": "explained the purpose for the sectional analysis: As chairman of the Judiciary Committee, I, along with Senator Thurmond ... took the lead in drafting the criminal law provisions that are contained in the drug bill. I have drafted a section-by-section analysis of those provisions, and believe it will be helpful to those who wish to know the intent of the drafters of this legislation. 134 Cong.Rec. S17360 (daily ed. November 10, 1988) (statement of Senator Biden). The analysis for the amendment to the schoolyard statute states: Section 6457. Possession With Intent to Distribute Within 1,000 Feet of a Schoolyard— Section 845a of title 21 currently makes it a crime to distribute or to manufacture controlled substances within 1,000 feet of a school. This section adds “possession with intent to distribute” to [the] list of offenses covered by this statute so that the enhanced penalties would apply to someone apprehended near a school with a quantity of drugs sufficient to indicate an intention to distribute. Id. at S17865. See also 134 Cong.Rec. S14067, S14071 (daily ed. October 3, 1988) (statement of Senator Nunn) (same). The Judiciary Committee analysis makes clear that Congress’ focus was on the quantity of drugs a defendant possesses within 1,000 feet of a school, not the location of the subsequent distribution. Otherwise, the above-quoted statement in the legislative history (sectional analysis) that enhanced penalties apply to “someone apprehended near a school with a quantity of drugs sufficient to indicate an intention to distribute” would be followed by: “within 1,000 feet of the school”, or “to schoolchildren”, or “in the vicinity of the school”. Instead, Congress chose to recognize the obvious dangers inherent in possessing large quantities of drugs in the vicinity of a school, whether or not schoolchildren, or someone else within the 1,000-foot zone, are the intended objects of the distribution. Previous decisions construing the schoolyard statute have upheld it against challenges that the particular conduct subjected to enhanced penalties was not of the type Congress attempted to remedy in enacting the statute. In United States v. Falu, 776 F.2d 46 (2d Cir.1985), for example, the" }, { "docid": "14976286", "title": "", "text": "made either at a bus terminal or train station. The analysis of each district court judge focused on the arguably ambiguous language of the statute and the intent of Congress in enacting the statute. They concluded that Congress intended to prevent drag supply in the vicinity of schools, but did not intend to enhance the penalty for mere possession within the vicinity of schools. Thus, the statute enhances the penalty for the affirmative acts of distribution, manufacturing, and possession with intent to distribute, but does not enhance the penalty for mere possession within 1,000 feet of a school. Unless the jury is instructed that the government must prove intent to distribute within 1,000 feet of a school, the jury would be able to find a defendant guilty of the schoolyard charge for mere possession within the forbidden zone. Although the New York cases are distinguishable because they involved arrests at the bus and train stations, a recent case out of the Northern District of Illinois reaches the same conclusion with respect to possession of drugs in a house within 1,000 feet of a school. In United States v. Testa, 768 F.Supp. 221 (N.D.Ill.1991), the court dismissed a schoolyard charge on the grounds that although the government had seized 20 kilograms of cocaine from a house within 1,000 feet of a school, the government had produced no evidence that the defendants intended to distribute the seized cocaine within 1,000 feet of a school. The court held that to read the statute the way the government urged would “effectively create an enhanced penalty for mere possession in the vicinity of a school, even though Section 841(a) criminalizes only possession with intent to distribute (Section 844 criminalizes possession alone, as Section 841(a)(1) does not).” Id. at 223 (emphasis in original). Finally, this circuit has had occasion to consider the issue, although not rule upon it, in United States v. Rogers, 918 F.2d 207 (D.C.Cir.1990) (Thomas, J.). In that case, the district court had — over the government’s objection — instructed the jury that the defendant “has to have the intent to distribute within" }, { "docid": "7988294", "title": "", "text": "also increase when crack cocaine is found within 1,000 feet of a school. Double penalties are imposed when the crack houses are within 1,000 feet of a school. The bills also expand existing law so that increased penalties apply for distributing or manufacturing any drugs within 1,000 feet of a school. 132 Cong.Rec. S10426 (daily ed. August 6, 1986) (statement of Senator Chiles). Senator Chiles’ comments leave no doubt that the bills’ proponents were concerned about the mere presence of large quantities of drugs around schools. His remarks also indicate an effort on the part of Congress to, among other things, cure the evil of drug dealers’ setting up shop in the zone surrounding schools. This desire to rid the area around schools of persons possessing large quantities of drugs, as discussed infra, formed the impetus to the 1988 amendments to the schoolyard statute. A section-by-section analysis of the amendment and other legislation was submitted to the Senate by the Judiciary Committee. It supports — indeed, mandates — our interpretation of the statute. Senator Biden explained the purpose for the sectional analysis: As chairman of the Judiciary Committee, I, along with Senator Thurmond ... took the lead in drafting the criminal law provisions that are contained in the drug bill. I have drafted a section-by-section analysis of those provisions, and believe it will be helpful to those who wish to know the intent of the drafters of this legislation. 134 Cong.Rec. S17360 (daily ed. November 10, 1988) (statement of Senator Biden). The analysis for the amendment to the schoolyard statute states: Section 6457. Possession With Intent to Distribute Within 1,000 Feet of a Schoolyard— Section 845a of title 21 currently makes it a crime to distribute or to manufacture controlled substances within 1,000 feet of a school. This section adds “possession with intent to distribute” to [the] list of offenses covered by this statute so that the enhanced penalties would apply to someone apprehended near a school with a quantity of drugs sufficient to indicate an intention to distribute. Id. at S17865. See also 134 Cong.Rec. S14067, S14071 (daily ed." }, { "docid": "14976287", "title": "", "text": "in a house within 1,000 feet of a school. In United States v. Testa, 768 F.Supp. 221 (N.D.Ill.1991), the court dismissed a schoolyard charge on the grounds that although the government had seized 20 kilograms of cocaine from a house within 1,000 feet of a school, the government had produced no evidence that the defendants intended to distribute the seized cocaine within 1,000 feet of a school. The court held that to read the statute the way the government urged would “effectively create an enhanced penalty for mere possession in the vicinity of a school, even though Section 841(a) criminalizes only possession with intent to distribute (Section 844 criminalizes possession alone, as Section 841(a)(1) does not).” Id. at 223 (emphasis in original). Finally, this circuit has had occasion to consider the issue, although not rule upon it, in United States v. Rogers, 918 F.2d 207 (D.C.Cir.1990) (Thomas, J.). In that case, the district court had — over the government’s objection — instructed the jury that the defendant “has to have the intent to distribute within a thousand feet of a school ..., and if he is found near a school with the intent to distribute drugs some other place, that is not a violation of the statute.” Id. at 213. The defendant was convicted and appealed on the grounds that the government had not produced enough evidence that he intended to distribute within 1,000 feet of the school. The court of appeals held that “[w]e need not decide here which interpretation of section 845a(a) [now 860(a)] is correct. Ample, and convincing, evidence supported the jury’s verdict under the reading of the statute more favorable to [the defendant].” Id. at 214. The court then noted in a footnote that three district judges in the Southern District of New York had rejected the government’s reading of the statute and held that the statute requires intent to distribute within 1,000 feet of a school. The court did not disapprove of these judges’ holdings. The cases that the government cites to support its argument that the defendant need not intend to distribute within 1,000" }, { "docid": "14976285", "title": "", "text": "challenge to the statute, holding that a defendant need not have knowledge that he committed an offense within 1,000 feet of a school in order to be convicted of violating the statute. It should be noted that Holland involved a distribution charge, rather than possession with intent to distribute. Neither of the Holland court’s holdings expressly addressed the issue now before the Court — whether the government must prove that the defendant intended to distribute crack cocaine within 1,000 feet of a public school rather than in some other location. The district court for the Southern District of New York has, however, reached this question on several occasions, and has held that the “better and more logical construction” of the statute is that it applies to those who intend to distribute controlled substances within 1,000 feet of a school. United States v. Liranzo, 729 F.Supp. 1012, 1014 (S.D.N.Y.1990); see also United States v. Coates, 739 F.Supp. 146, 152-53 (S.D.N.Y.1990); United States v. Roberts, 735 F.Supp. 537, 542-43 (S.D.N.Y.1990). Each of these cases involved an arrest made either at a bus terminal or train station. The analysis of each district court judge focused on the arguably ambiguous language of the statute and the intent of Congress in enacting the statute. They concluded that Congress intended to prevent drag supply in the vicinity of schools, but did not intend to enhance the penalty for mere possession within the vicinity of schools. Thus, the statute enhances the penalty for the affirmative acts of distribution, manufacturing, and possession with intent to distribute, but does not enhance the penalty for mere possession within 1,000 feet of a school. Unless the jury is instructed that the government must prove intent to distribute within 1,000 feet of a school, the jury would be able to find a defendant guilty of the schoolyard charge for mere possession within the forbidden zone. Although the New York cases are distinguishable because they involved arrests at the bus and train stations, a recent case out of the Northern District of Illinois reaches the same conclusion with respect to possession of drugs" }, { "docid": "6211595", "title": "", "text": "concern with the mere presence of large quantities of illegal drugs near schools, not just their distribution near schools. McDonald, 991 F.2d at 869; Rodriguez, 961 F.2d at 1092; Wake, 948 F.2d at 1431, 1433. As the Rodriguez court explained: By prescribing enhanced penalties for the manufacture of drugs near a school (regardless of the intended site of distribution), Congress made clear that it did not wish to confine the schoolyard statute to cases in which a defendant distributes or intends to distribute drugs near a school. Rather, Congress was more broadly concerned about serious drug crimes that occur in proximity to schools. 961 F.2d at 1092. Defendant urges us to apply the rule of lenity to adopt his narrow interpretation of § 860(a). We decline to do so. The rule of lenity “is not applicable unless there is a grievous ambiguity or uncertainty in the language and structure of the Act such that even after a court has seized every thing from which aid can be derived, it is still left with an ambiguous statute.” Chapman v. United States, 500 U.S. 453, 463, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991) (internal citations, quotations marks, and modifications omitted). Section 860(a) is not grievously ambiguous; therefore, the rule of lenity does not apply. In sum, we hold that to obtain a conviction under § 860(a)- for possession with intent to distribute, the government need only prove that the defendant possessed illegal drugs within 1,000 feet of a school and intended to distribute them somewhere. Because the Government presented sufficient evidence in this case to show that Defendant possessed cocaine base within 1,000 feet of a school and that he intended to distribute the cocaine base in Mobile, Alabama, we uphold the jury’s verdict finding Defendant guilty of violating § 860(a). C. Lesser Included Offense Instruction Defendant next argues that the district court erred in refusing to give a jury instruction on the lesser included offense of simple possession of cocaine base. He contends that the jurors could have found him guilty of simply possessing the cocaine base for his own personal" }, { "docid": "6211589", "title": "", "text": "had a reasonable belief that the object he felt might be a gun, he continued to have a right under Terry to reach into Defendant’s boot to investigate further. As a final matter, we recognize the Government’s argument that Officer Allen also had probable cause to stop and search Defendant once he smelled the odor of burnt marijuana emanating from Defendant. However, given our determination that the district court properly denied Defendant’s motion to suppress’ under Terry, we need not reach the issue of probable cause. For all of the reasons stated above, we conclude that the district court properly denied Defendant’s motion to suppress. B. Intent to Distribute Within 1,000 Feet of School 21 U.S.C. § 860(a) is an offense that enhances the penalty for “[a]ny person who violates section 841(a)(1) or section 856 of [Title 21] by distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within one thousand feet of, the real property comprising a public or private elementary ... .school....” 21 U.S.C. § 860(a) (emphasis added). Defendant argues that the evidence presented at trial in this case was insufficient to convict him of violating 21 U.S.C. § 860(a) because the district court did not require the Government to prove as an essential element of the crime that Defendant intended to distribute cocaine base within 1,000 feet of a school. The issue of whether § 860(a) requires an intent to distribute a controlled substance within 1,000 feet of a school, as opposed to mere possession with an intent to distribute the controlled substance somewhere, is one of first impression for our court. Because the question hinges on the interpretation of a statute, we review the district court’s decision de novo. United States v. Jackson, 248 F.3d 1028, 1030 (10th Cir.2001) (citation omitted). Five of our sister circuits have previously addressed the precise issue before us today, and each has adopted a broad reading of § 860(a) by holding that the government need only prove that the defendant possessed illegal drugs within 1,000 feet of a school and intended to distribute them" }, { "docid": "7116126", "title": "", "text": "MEMORANDUM STANTON, District Judge. Defendant Josefina Melendez Liranzo was arrested in the Port Authority bus terminal in possession of approximately a kilogram of cocaine. The bus terminal is within 1,000 feet of the Holy Cross School, a private elementary school. She was charged with possessing cocaine with intent to distribute it, within 1,000 feet of a school, in violation of 21 U.S.C. § 845a(a) (the “schoolyard” statute). The evidence makes clear beyond doubt that defendant did not intend to distribute the cocaine within 1,000 feet of the Holy Cross School, but rather was taking it to Reading, Pennsylvania for delivery to another person. Her motion for acquittal pursuant to Fed. R.Crim.P. 29(a) at the close of the government’s case raises the question whether the evidence is insufficient to sustain a conviction under the schoolyard statute. Section 845a enhances the penalty for those found guilty of certain narcotics crimes committed within 1,000 feet of a school. Subsection (a) of the statute originally enhanced the penalty for those distributing controlled substances within 1,000 feet of a school. In 1986 it was amended to include those manufacturing controlled substances within 1,000 feet of a school. In 1988 it was further amended to include those “possessing with intent to distribute ... a controlled substance ... within one thousand feet of” a school. As amended, it provides: Any person who violates section 841(a)(1) or section 856 of this title by distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within one thousand feet of, the real property comprising a public or private elementary, vocational, or secondary school or a public or private college, junior college, or university ... is ... punishable (1) by a term of imprisonment, or fine, or both up to twice that authorized by section 841(b) of this title; and (2) at least twice any term of supervised release authorized by section 841(b) of this title for a first offense. Except to the extent a greater minimum sentence is otherwise provided by section 841(b) of this title, a term of imprisonment under this subsection shall be" }, { "docid": "7988287", "title": "", "text": "who violates section 841(a)(1) or section 856 of this title by distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within one thousand feet of, the real property comprising a public or private elementary, vocational, or secondary school.... 21 U.S.C. § 845a(a). Section 841(a)(1), the substantive offense, one of the statutes whose penalty is enhanced by the schoolyard statute, provides: (a) Except as authorized by this subchap-ter, it shall be unlawful for any person knowingly or intentionally— (1) To manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.... Penalties for violation of § 841(a) are found in § 841(b). And, if the elements of the schoolyard statute are found, a defendant is subject to greater punishment than provided under § 841(b), including multiples of some of the penalties. Wake was indicted under the “possessing with intent to distribute” clause of the schoolyard statute. He does not dispute that he possessed cocaine within 1,000 feet of a school or that he intended to distribute it somewhere. Rather, he asserts that, for the schoolyard statute to apply, he must have intended to distribute the controlled substance within 1,000 feet of a school. The district court did not present the jury with the option of finding that Wake’s transfer—within the prohibited zone—of possession of the cocaine to Segura each evening constituted distribution within the meaning of the statute. Pursuant to the instructions given, and in order to find Wake guilty, the jury had to find not that he intended to distribute the drugs within 1,000 feet of a school, but only that he intended to distribute them (somewhere ). Accordingly, we must decide whether the statute supports the instruction. Cf. United States v. Rogers, 918 F.2d 207, 214 (D.C.Cir.1990) (declining to address issue of which construction of schoolyard statute is correct because ample evidence existed of defendant’s intent to distribute within 1,000 feet of a school). The issue is whether the jury could convict Wake under § 845a (now 21 U.S.C. § 860) if it found that he possessed a" }, { "docid": "7988292", "title": "", "text": "possession” for “possessing with intent to distribute”, the statute would proscribe “distributing, [felony possession], or manufacturing within one thousand feet of ... a ... school — ” We view the statute as clear in proscribing the possession, within the school zone, of a felony quantity of a controlled substance— that is, an amount that evidences an intent to distribute the drugs somewhere. Congress’s earlier inclusion of the phrase “or manufacturing” provides additional support for our reading of the statute. As discussed above, when the statute was first enacted, it provided an enhanced penalty only for distributing drugs within 1,000 feet of a school; but, in 1986, when the statute was amended by inserting “or manufacturing” after “distributing”, this reflected that the statute was directed at the mere presence of drugs near schools. We recognize that “[b]ecause construction of a criminal statute must be guided by the need for fair warning, it is rare that legislative history or statutory policies will support a construction of a statute broader than that clearly warranted by the text.” Crandon, 110 S.Ct. at 1002-03. In reaching our reading of the statute, it is not necessary to look to its legislative history. This notwithstanding, our reading is entirely consistent with that history. Senator Hawkins introduced the 1984 version of the statute, which proscribed only distribution. See 130 Cong.Rec. S569 (daily ed. Jan. 31, 1984) (statement of Senator Hawkins). She stated that the legislation was based on a premise that “threatening pushers who approach our children near schools with stiff penalties will help reduce drug use in schools.” Id. Although she characterized the bill as a reaction to drug dealers’ distribution activities toward children, she also articulated a purpose to “send a signal to drug dealers that we will not tolerate their presence near our schools.” Id. (emphasis supplied). Legislative history accompanying the 1986 amendments to the schoolyard statute (prescribing enhanced penalties for manufacturing within 1,000 feet of a school) indicates Congress’ concern to eradicate drugs, and especially crack cocaine, around schools. Senator Chiles, who jointly introduced the legislation before the Senate with Senator Biden, stated: Penalties" }, { "docid": "7988289", "title": "", "text": "controlled substance within 1,000 feet of a school with intent to distribute it somewhere. Neither this nor any other court of appeals has ruled on this issue. However, at least three district courts have. Each has given the statute the interpretation that Wake advocates. See United States v. McDonald, 777 F.Supp. 44, 45-46 (D.D.C.1991); United States v. Testa, 768 F.Supp. 221, 223 (N.D.Ill.1991); United States v. Liranzo, 729 F.Supp. 1012, 1014 (S.D.N.Y.1990); United States v. Coates, 739 F.Supp. 146, 153 (S.D.N.Y.1990); United States v. Roberts, 735 F.Supp. 537, 540-41 (S.D.N.Y.1990). We reach a different result from those decisions. As discussed below, we construe the statute to proscribe possession, within 1,000 feet of a school, of a quantity sufficient to indicate intent to distribute (felony possession). This construction is supported by legislative history not cited in these district court opinions and by the congressional purpose to create a “drug-free zone” around our nation’s schools. As noted, the statute applies to anyone “who violates § 841(a)(1) or § 856 ... by distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within 1,000 feet of” a school. As also noted, § 841(a)(1) makes it unlawful “[t]o manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.... ” When first enacted in 1984, the schoolyard statute provided an enhanced penalty for distributing drugs within 1,000 feet of a school. In 1986, Congress expanded the scope of § 845a(a) to insert “or manufacturing” after “distributing” where it appeared in the statute and by expanding the types of educational institutions [included]_ 132 Cong.Rec. H11219-02 at § 1104 (1986). In 1988 Congress amended the section once again to insert “, possessing with intent to distribute,” after “distributing.” 134 Cong.Rec. S15785-01 at § 2254 (1988). Roberts, 735 F.Supp. at 538 (emphasis in original) (footnote omitted). “In determining the meaning of the statute, we look not only to the particular statutory language, but to the design of the statute as a whole and to its object and policy.” Crandon v. United States, 494 U.S. 152, 110 S.Ct." }, { "docid": "7988286", "title": "", "text": "false statements. Rather, the fruits of the search are admissible so long as there is no showing of deliberate falsity or reckless disregard of the truth in the affidavit; or, where there is such a showing, so long as the affidavit, when stripped of its false or inaccurate statements, supports a finding of probable cause. Wake did not prove that Hildreth acted with deliberate falsehood or reckless disregard for the truth. Although Wake elicited testimony from Thompson—belatedly at trial—that Austin had not furnished prior reliable information, he did not adduce, or otherwise present, any proof that Hildreth submitted the affidavit knowing of the false statements or with reckless disregard for their truth. Because we find insufficient evidence of deliberate falsehood or reckless disregard for the truth, we need not consider whether probable cause would exist if the inaccurate statements were excised. There was no error, especially under the narrow standard of review for motions for acquittal and new trial. C. Wake contests use of the penalty enhancement provided by the schoolyard statute for [a]ny person who violates section 841(a)(1) or section 856 of this title by distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within one thousand feet of, the real property comprising a public or private elementary, vocational, or secondary school.... 21 U.S.C. § 845a(a). Section 841(a)(1), the substantive offense, one of the statutes whose penalty is enhanced by the schoolyard statute, provides: (a) Except as authorized by this subchap-ter, it shall be unlawful for any person knowingly or intentionally— (1) To manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.... Penalties for violation of § 841(a) are found in § 841(b). And, if the elements of the schoolyard statute are found, a defendant is subject to greater punishment than provided under § 841(b), including multiples of some of the penalties. Wake was indicted under the “possessing with intent to distribute” clause of the schoolyard statute. He does not dispute that he possessed cocaine within 1,000 feet of a school or that he intended to" }, { "docid": "7880270", "title": "", "text": "applies to a defendant who possesses drugs within 1000 feet of a school even if he or she intends to distribute them elsewhere. See also State v. Ivory, 124 N.J. 582, 592 A.2d 205 (1991) (interpreting similarly worded state statute). We agree with the Fifth Circuit’s analysis and its conclusion. In order to convict the defendant of possession of a controlled substance — and, as I told you, cocaine is a controlled substance — within 1,000 feet of a school, the Government does not have to prove that the defendant specifically knew that the school was less than a thousand feet away. First, we believe that this interpretation is supported by the language of the schoolyard statute. This provision applies to three types of criminal conduct: distributing drugs, possessing drugs with the intent to distribute, and manufacturing drugs. In cases involving the distribution or manufacture of drugs, it is clear that this provision requires that the actus reus must occur within 1000 feet of a school. Accordingly, it is reasonable to interpret the statute as applying in the same way to the offense of possession with intent to distribute. Since the actus reus for this offense is possession, it follows that possession of the drugs, not the intended location for distribution, must be located within 1000 feet of a school. This interpretation is also supported by Congress’ decision to make the schoolyard provision applicable to the manufacture of drugs within 1000 feet of a school. By prescribing enhanced penalties for the manufacture of drugs near a school (regardless of the intended site of distribution), Congress made clear that it did not wish to confine the schoolyard statute to cases in which a defendant distributes or intends to distribute drugs near a school. Rather, Congress was more broadly concerned about serious drug crimes that occur in proximity to schools. B. The legislative history supports this interpretation of the schoolyard provision. As originally enacted in 1984, the schoolyard statute applied only to the distribution of drugs within 1000 feet of a school. In 1988, however, Congress enacted the amendment that added possession" }, { "docid": "4050902", "title": "", "text": "881.8 feet from school convicted); United States v. Byrd, 837 F.2d 179, 180 (5th Cir.1988) (defendant distributed cocaine within 1000 feet of school), even where the defendant was charged with possession with intent to distribute. See, e.g., United States v. Hernandez, 1988 WL 108444 (S.D.N.Y.1988) (distribution of heroin within 1000 feet of school). Moreover, where a court incants the now familiar Falu language that the schoolyard statute was to create a “drug-free zone” it still invariably refers to those who deal and narcotic transactions, not mere existence of drugs within the 1000 foot zone. See, e.g., United States v. Watson, 887 F.2d 980, 981 (9th Cir.1989) (noting that dealers would escape prosecution if 1000 feet measured by circuitous routes to their narcotics transactions)', United States v. Holland, 810 F.2d 1215, 1219 (D.C.Cir.1987) (concurring in “recitations of congressional purpose,” and finding enhanced punishment of transactions rationally related to purposes of § 845a), cert. denied, 481 U.S. 1057, 107 S.Ct. 2199, 95 L.Ed.2d 854 (1987). Finally, the Government argues that congressional intent to create a drug-free zone that would prevent mere possession near the school is also implied by the Congress’s amendment to prevent mere manufacturing near schools, regardless of where the manufactured drugs are distributed. The government’s point regarding “manufacturing” is well-taken. This gerund is not modified by any “intent to distribute” language. Nonetheless, the argument is unconvincing. Distributing, manufacturing, and possessing with intent to distribute are all forms of behavior leading to the supply of drugs within the vicinity of the school. As such, Congress’s addition of this activity is consonant with the interpretation that Congress sought to prevent drug supply in the vicinity of schools, it does not support the interpretation that the 1000 foot zone must be completely “drug-free.” If Congress wanted to provide an enhancement penalty for anyone with drugs who penetrated the “drug-free” zone Congress could have sought to provide an enhancement penalty for other types of behavior, for example, mere possession, or consumption within 1000 feet of the school. Accordingly, it is inferred that Congress did not intend the enhanced penalties of the statute to" }, { "docid": "7880269", "title": "", "text": "Rodriguez argues that this provision does not apply to a defendant who possesses drugs within 1000 feet of a school but intends to distribute them elsewhere. Rather, she asserts, the statute requires proof of an intent to distribute drugs within 1000 feet of a school. She claims that, while there was evidence that she possessed cocaine within 1000 feet of a school, there was no evidence that she intended to distribute the cocaine within 1000 feet of a school. Moreover, she contends that the district court committed reversible error by failing to instruct the jury that proof of an intent to distribute the cocaine within 1000 feet of a school was required. There is no indication that Rodriguez, raised this issue of statutory construction in the district court. Consequently, we could reverse her conviction only if we found plain error. A. To date, one other court of appeals has addressed the issue of statutory construction presented here. In United States v. Wake, 948 F.2d 1422 (5th Cir.1991), the Fifth Circuit held that the schoolyard provision applies to a defendant who possesses drugs within 1000 feet of a school even if he or she intends to distribute them elsewhere. See also State v. Ivory, 124 N.J. 582, 592 A.2d 205 (1991) (interpreting similarly worded state statute). We agree with the Fifth Circuit’s analysis and its conclusion. In order to convict the defendant of possession of a controlled substance — and, as I told you, cocaine is a controlled substance — within 1,000 feet of a school, the Government does not have to prove that the defendant specifically knew that the school was less than a thousand feet away. First, we believe that this interpretation is supported by the language of the schoolyard statute. This provision applies to three types of criminal conduct: distributing drugs, possessing drugs with the intent to distribute, and manufacturing drugs. In cases involving the distribution or manufacture of drugs, it is clear that this provision requires that the actus reus must occur within 1000 feet of a school. Accordingly, it is reasonable to interpret the statute as" }, { "docid": "14976283", "title": "", "text": "MEMORANDUM OPINION THOMAS F. HOGAN, District Judge. The defendant in this case, Anthony McDonald, is charged with one count of possession with intent to distribute five or more grams of crack cocaine (count I) and one count of possession with intent to distribute crack cocaine within 1,000 feet of a public elementary school (count II). Because of a conflict over appropriate jury instructions, the Court writes briefly to rule on the issue. The government has requested that the Court’s instruction with respect to count II of the indictment (the schoolyard charge) should ask only whether the defendant committed the offense charged in count I within 1,000 feet of a public school and not whether the defendant knew that he was within 1,000 feet of a public school. The defendant does not object to this instruction; however, the defendant argues that the Court’s instruction must require the jury to find that the defendant intended to distribute within 1,000 feet of the school in order to find the defendant guilty of count II. The substantive statute at issue in count II is 21 U.S.C. § 860(a), which provides an enhanced penalty for anyone who distributes, possesses with intent to distribute, or manufactures a controlled substance “in or on, or within one thousand feet of, the real property comprising a public or private elementary, vocational, or secondary school or a public or private college, junior college, or university, or a playground_” A precursor to this statute, 21 U.S.C. § 845a, which was substantially similar, has already withstood constitutional challenge by this circuit. In United States v. Holland, 810 F.2d 1215 (D.C.Cir.), cert. denied, 481 U.S. 1057, 107 S.Ct. 2199, 95 L.Ed.2d 854 (1987), the court rejected an argument that the statute was unconstitutionally overin-clusive because it applied to offenses that take place in nearby private dwellings. The court stated that “[t]he consequences of such transactions inevitably flow from inside the dwellings onto the streets and contribute directly to the violent and dangerous criminal milieu Congress sought to eliminate in the proximity of schools.” Id. at 1219. The court then rejected a due process" }, { "docid": "7988288", "title": "", "text": "distribute it somewhere. Rather, he asserts that, for the schoolyard statute to apply, he must have intended to distribute the controlled substance within 1,000 feet of a school. The district court did not present the jury with the option of finding that Wake’s transfer—within the prohibited zone—of possession of the cocaine to Segura each evening constituted distribution within the meaning of the statute. Pursuant to the instructions given, and in order to find Wake guilty, the jury had to find not that he intended to distribute the drugs within 1,000 feet of a school, but only that he intended to distribute them (somewhere ). Accordingly, we must decide whether the statute supports the instruction. Cf. United States v. Rogers, 918 F.2d 207, 214 (D.C.Cir.1990) (declining to address issue of which construction of schoolyard statute is correct because ample evidence existed of defendant’s intent to distribute within 1,000 feet of a school). The issue is whether the jury could convict Wake under § 845a (now 21 U.S.C. § 860) if it found that he possessed a controlled substance within 1,000 feet of a school with intent to distribute it somewhere. Neither this nor any other court of appeals has ruled on this issue. However, at least three district courts have. Each has given the statute the interpretation that Wake advocates. See United States v. McDonald, 777 F.Supp. 44, 45-46 (D.D.C.1991); United States v. Testa, 768 F.Supp. 221, 223 (N.D.Ill.1991); United States v. Liranzo, 729 F.Supp. 1012, 1014 (S.D.N.Y.1990); United States v. Coates, 739 F.Supp. 146, 153 (S.D.N.Y.1990); United States v. Roberts, 735 F.Supp. 537, 540-41 (S.D.N.Y.1990). We reach a different result from those decisions. As discussed below, we construe the statute to proscribe possession, within 1,000 feet of a school, of a quantity sufficient to indicate intent to distribute (felony possession). This construction is supported by legislative history not cited in these district court opinions and by the congressional purpose to create a “drug-free zone” around our nation’s schools. As noted, the statute applies to anyone “who violates § 841(a)(1) or § 856 ... by distributing, possessing with intent to distribute," }, { "docid": "7988275", "title": "", "text": "a search warrant for Wake’s office. However, when officers arrived at the building, they discovered that the suite whose number Austin had given them was subdivided into three smaller suites. Hildreth returned the original warrant unexecuted and obtained a more specific warrant. The search of the office uncovered various drug paraphernalia, drug records, marijuana, and approximately two kilograms of cocaine. Moreover, Wake’s office was located within 400 feet of Travis High School, a public secondary school in Austin. A second superseding indictment charged Wake with: (1), within 1,000 feet of a school, conspiring to possess with intent to distribute more than 500 grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846, and 845a(a) (count 1); (2), within 1,000 feet of a school, possessing with intent to distribute more than 500 grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) (count 2); (3) possessing with intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1) (count 3); and (4) money laundering, in contravention of 18 U.S.C. § 1956(a)(l)(A)(i) (count 4). Wake’s pre-trial motions to suppress the Hall telephone conversations and evidence seized from his office were denied. He was found guilty by a jury on all counts. And, his post-trial motions, including for a new trial based on newly discovered evidence, were denied. The district court sentenced Wake to 327 months’ imprisonment, eight years of supervised release, a $160,000 fine, and a $200 special assessment. II. Wake contends that the district court committed reversible error by (1) admitting into evidence (a) the telephone conversations allegedly obtained in violation of statute, (b) evidence seized pursuant to a warrant supported by an affidavit containing incorrect statements, and (c) documents he contends were unauthenticated and hearsay; (2) its application of the schoolyard statute (penalty enhancement); and (3) refusing to grant a new trial based on newly discovered evidence. He also contends that an answer by a government witness, asserted to be in violation of an agreed motion in limine, mandates reversal. A. Wake asserts that the telephone conversations recorded through Mitch Hall’s cooperation should have" }, { "docid": "4050894", "title": "", "text": "cocaine in Harlem on the morning of November 7,1989, that Roberts hid the drugs inside his jacket, and that the two then returned to a Days Inn in midtown Manhattan where they had stayed the previous night. According to Brock, he and Roberts returned to the hotel to pick up Saunders, to transfer the cocaine to a backpack, and then to summon a taxi. All three then proceeded to Penn Station, where Saunders, while carrying the drug-filled bag, was arrested when trying to board a train to Wilmington, Delaware.. Roberts and Brock were arrested outside the station. Both Brock and Saunders testified that they along with Roberts had conspired to travel from Wilmington to buy drugs in New York City, and then bring them to Wilmington for sale. Although the government proved that the Days Inn was within 1,000 feet of the John Jay College of Criminal Justice, no evidence was adduced that Roberts intended to distribute the cocaine at or near the Days Inn or elsewhere in New York City. The Statute Title 21 U.S.C. § 845a(a) provides an enhanced penalty for: Any person who violates section 841(a)(1) or section 856 of this title by distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within one thousand feet of ... a public or private college— 21 U.S.C. § 845a(a) (emphasis added). When first enacted in 1984, the schoolyard statute provided an enhanced penalty for distributing drugs within 1000 feet of a school. In 1986, Congress expanded the scope of § 845a(a) to insert “or manufacturing” after “distributing” where it appeared in the statute and by expanding the types of educational institutions to include “a public or private elementary, vocational, or secondary school or a public or private college, junior college, or university.” 132 Cong.Rec. H11219-02 at § 1104 (1986). In 1988 Congress amended the section once again to insert “, possessing with intent to distribüte,” after “distributing.” 134 Cong.Rec. S15785-01 at § 2254 (1988). The amendment also created an additional 100-foot protective zone surrounding playgrounds, youth centers, public swimming pools, and video arcade" }, { "docid": "16918776", "title": "", "text": "Accordingly, we rule that Ortiz’ ineffective assistance claim is without merit. B. Schoolyard Statute Ortiz argues that the trial evidence failed to support his conviction under 21 U.S.C. §§ 841(a)(1) and 860(a) for possession of a controlled substance with intent to distribute within 1,000 feet of a public school. Section 860(a), commonly known as the schoolyard provision of the federal drug laws, provides enhanced penalties for: Any person who violates section 841(a)(1) or section 856 ... by distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within one thousand feet of, the real property comprising a public or private elementary, vocational, or secondary school.... 21 U.S.C. § 860(a). According to Ortiz, the statute requires proof that the defendant intended to distribute or that he actually distributed narcotics within 1,000 feet of the middle school located near his parents’ residence. Since the government presented no evidence that Ortiz had such an intent, appellant asserts that we must reverse his conviction on the first two counts. We engage in de novo review of questions of law. United States v. Fernandez, 121 F.3d 777, 778 (1st Cir.1997). While this court has yet to address the issue presented here, three other courts of appeals have held that the enhanced penalty under § 860(a) applies to a defendant who with intent to distribute possesses narcotics in a school zone even if he or she intends to distribute the drugs there or elsewhere. See United States v. McDonald, 991 F.2d 866, 868-70 (D.C.Cir.1993); United States v. Rodriguez, 961 F.2d 1089, 1092-95 (3d Cir.1992); United States v. Wake, 948 F.2d 1422, 1431-33 (5th Cir.1991). We agree with our sister circuits. The language of § 860(a) supports the conclusion that the statute punishes drug possession with intent to distribute near a school, whether or not the intended target for distribution is within the area surrounding the school. As both the Third and District of Columbia Circuits have noted, “[the] provision applies to three types of criminal conduct: distributing drugs, possessing drugs with the intent to distribute, and manufacturing drugs.” Rodriguez, 961 F.2d" } ]

[ { "docid": "7331655", "title": "", "text": "(11th Cir.1986) (citing Connick v. Myers, 461 U.S. 138, 150 n. 10, 103 S.Ct. 1684, 1692 n. 10, 75 L.Ed.2d 708 (1983)), cert. denied, 483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987); Ferrara v. Mills, 781 F.2d 1508, 1515 (11th Cir.1986) (citing Connick, 461 U.S. at 148 n. 7, 150 n. 10, 103 S.Ct. at 1690 n. 7, 1692 n. 10). Because it is a question of law, the public concern issue is “readily susceptible to disposition” by directed verdict. Ferrara, 781 F.2d at 1515 (regarding summary judgment disposition). “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 1690. In applying the “content, form, and context” analysis, the Supreme Court has directed courts to consider whether the speech at issue was made in the employee’s role as citizen or as employee. Connick, 103 S.Ct. at 1690. In addition, courts have considered “the employee’s efforts to communicate his or her concerns to the pub- lie” and “the content of the speech.” Kurtz, 855 F.2d at 727. Also relevant is the employee’s motivation in speaking. Ferrara, 781 F.2d at 1515. In Kurtz, we held that two published letters and various memoranda from Kurtz, a tenured professor, to Vickrey, the university president, and several discussions between them, “may fairly be characterized as relating to matters of public concern.” Kurtz, 855 F.2d at 730. We found, as an initial matter, that Kurtz’s speech revealed Kurtz’s concern about his own salary and the personal animosity between Kurtz and Vickrey, see id. at 728, and we determined that issues of personality conflict and salary level are not matters of public concern. Id. at 729. However, Kurtz’s speech also concerned topics relating to the management of the university, such as the misuse of public dollars allocated for education. Kurtz, 855 F.2d at 729-30. Because “the content of his criticism of the university’s spending priorities related to a matter of public concern,” we held that Kurtz’s speech could be fairly characterized as" } ]

[ { "docid": "12682579", "title": "", "text": "of cross-appeal against Brookshire as well, but later dropped it. Hence, the present appeal concerns only Ector County and Smith in his official capacity and only the issues of whether those defendants violated Davis's First Amendment rights and the Texas Whistle Blower Act. . Although not the subject of this appeal, Davis alluded in his affidavit to a previous instance in which the Sheriff's department knew of, but covered up, the sexual harassment of some department employees. By that reference, Davis intends to place the letter here at issue into a larger context. He contends that he wrote the letter to forestall any similar attempt to interfere with a proper investigation into his wife’s allegations. . See Rankin v. McPherson, 483 U.S. 378, 386 n. 9, 107 S.Ct. 2891, 2898 n. 9, 97 L.Ed.2d 315 (1987); Dodds v. Childers, 933 F.2d 271, 273 (5th Cir.1991). . Connick v. Myers, 461 U.S. 138, 145, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708 (1983). . Id. (quoting N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886, 913, 102 S.Ct. 3409, 3425, 73 L.Ed.2d 1215 (1982)). . Id. at 146, 103 S.Ct. at 1689-90 (a finding that employee expression is not on a matter of public concern pretermits judicial inquiry into other reasons for discharge). . Thompson v. City of Starkville, Miss., 901 F.2d 456, 463 (5th Cir.1990). . 855 F.2d 187, 192 (5th Cir.1988). . See also Thompson, 901 F.2d at 463 (the exposure of misconduct in a police department \"should be classified as speech addressing a matter of public concern\"); Conaway v. Smith, 853 F.2d 789, 796 (10th Cir.1988) (per curiam) (\"Speech which discloses any evidence of corruption, impropriety, or other malfeasance on the part of city officials, in terms of content, clearly concerns matters of public import.”). . 933 F.2d 271 (5th Cir.1991). . Id. at 273. . Id. at 273-74. . Id. at 274; Connick, 461 U.S. at 147-48, 103 S.Ct. at 1690-91. . The defendants have confused the catalyst for prompting Davis to write the letter with his purpose in doing so. The catalyst was Davis’s realization that many believed" }, { "docid": "23115929", "title": "", "text": "“whether the employee’s speech may be ‘fairly characterized as constituting speech on a matter of public concern.’” Bryson, 888 F.2d at 1565 (quoting Rankin, 483 U.S. at 384, 107 S.Ct. at 2896-97 (citation omitted)). See also Kurtz v. Vickrey, 855 F.2d 723 (11th Cir.1988); Ferrara v. Mills, 781 F.2d 1508, 1512 (11th Cir.1986). If so, the district court must “weigh[] the employee’s first amendment interests against ‘the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees.’ ” Bryson, 888 F.2d at 1565 (quoting Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968)). Should the employee prevail on the balancing test, “the fact-finder determines whether the employee’s speech played a ‘substantial part’ in the government’s decision to demote or discharge the employee.” Id. (citing Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)). Finally, if the employee shows that the speech was a substantial motivating factor in the employment decision, “the state must prove by a preponderance of the evidence that ‘it would have reached the same decision ... even in the absence of the protected conduct.' ” Id. at 1566 (quoting Mt. Healthy, 429 U.S. at 286, 97 S.Ct. at 576). Applying this four-part test, we first examine whether Morgan’s speech related to a matter of “public concern.” Morgan contends that her speech—the complaints of sexual harassment—involves a public concern, because sexual harassment in the workplace is a matter of vital social interest. To fall within the realm of the “public concern,” an employee’s speech must “relat[e] to a[ ] matter of political, social, or other concern to the community.” Connick v. Meyers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983). Absent extraordinary circumstances, however, First Amendment protection remains unavailable 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....” Id. at 147, 103 S.Ct. at 1690. A court must therefore" }, { "docid": "16876339", "title": "", "text": "public employees do not have as broad a right of free speech as they would if they were merely critics and not also employees of government. (1) A public employee disciplined for making a statement that is not a public comment on issues of public significance has no remedy under the First Amendment. Connick v. Myers, 461 U.S. 138, 146, 149, 103 S.Ct. 1684, 1689-90, 1691, 75 L.Ed.2d 708 (1983); see also Rankin v. McPherson, 483 U.S. 378, 384, 107 S.Ct. 2891, 2897, 97 L.Ed.2d 315 (1987). (2) An employee’s state ment that would be protected if made by a person not employed by the public agency is not privileged if it is likely to disrupt the efficient operation of the agency. Id. at 384, 107 S.Ct. at 2897; Connick v. Myers, supra, 461 U.S. at 149-51, 103 S.Ct. at 1691-92; Pickering v. Board of Education, supra, 391 U.S. at 568, 88 S.Ct. at 1734. (3) States can adopt counterparts to the federal Hatch Act, Broadrick v. Oklahoma, 413 U.S. 601, 93. S.Ct. 2908, 37 L.Ed.2d 830 (1973), which requires a civil servant who wants to run for office to resign from the civil service. 5 U.S.C. § 7324(a)(2). The first limitation is not involved in this case, however. As for the second, the defendant has presented, as we have said, no evidence of actual or probable disruption. As for the third, the defendant does not rely on the “baby Hatch Act” cases, perhaps because Illinois does not have a baby Hatch Act. He could we suppose argue that his own regulation empowering him to place any employee who runs for sheriff on unpaid leave of absence is itself a baby Hatch Act, entitled to the same deference as a state statute would be, since ordinarily the federal courts do not concern themselves with the level within state government at which an action claimed to violate the federal Constitution originates. Falls v. Town of Dyer, 875 F.2d 146, 147 (7th Cir.1989); Menora v. Illinois High School Ass’n, 683 F.2d 1030, 1036 (7th Cir.1982); DeMallory v. Cullen, 855 F.2d 442, 453-54" }, { "docid": "437687", "title": "", "text": "opinion on the ultimate merits of the litigation. We simply hold that the district court correctly denied summary judgment at this time on the record before them. For these reasons, the judgment is AFFIRMED. . Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985). . Id. at 528-29, 105 S.Ct. at 2816-17. . — U.S. -, 107 S.Ct. 2891, 2896-2900, 97 L.Ed.2d 315 (1987). . See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); see also Noyola v. Texas Dept. of Human Resources, 846 F.2d 1021, 1023 (5th Cir.1988). . Rankin, 107 S.Ct. at 2896. . Id. at 2896-97; Page v. DeLaune, 837 F.2d 233, 237 (5th Cir.1988). . Noyola, 846 F.2d at 1023. . Connick v. Myers, 461 U.S. 138, 147-48, 103 S.Ct. 1684, 1690-91, 75 L.Ed.2d 708 (1983); Terrell v. University of Texas System Police, 792 F.2d 1360, 1362 n. 2 (5th Cir.1986), cert. denied, 479 U.S. 1064, 107 S.Ct. 948, 93 L.Ed.2d 997 (1987). . Page, 837 F.2d at 237 (quoting Connick, 461 U.S. at 147, 103 S.Ct. at 1690). . Terrell, supra, 792 F.2d 1260. . Day v. South Park Independent School District, 768 F.2d 696, 700-01 (5th Cir.1985), cert. denied, 474 U.S. 1101, 106 S.Ct. 883, 88 L.Ed.2d 918 (1986). . Thomas v. Harris County, 784 F.2d 648, 653 (5th Cir.1986). . Gonzalez v. Benavides, 712 F.2d 142 (5th Cir.1983). . Solomon v. Royal Oak Township, 842 F.2d 862, 865 (6th Cir.1988); O'Brien v. Town of Caledonia, 748 F.2d 403, 407 (7th Cir.1984); Brockell v. Norton, 732 F.2d 664, 668 (8th Cir.1984). . Connick, 461 U.S. at 142, 103 S.Ct. at 1687; Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968). . See Pickering, 391 U.S. at 569-73, 88 S.Ct. at 1735-37. . See Connick, 461 U.S. at 149, 103 S.Ct. at 1691. . See Solomon, 842 F.2d at 866. . Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. . Anderson v. Creighton, — U.S. -, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523" }, { "docid": "23115930", "title": "", "text": "in the employment decision, “the state must prove by a preponderance of the evidence that ‘it would have reached the same decision ... even in the absence of the protected conduct.' ” Id. at 1566 (quoting Mt. Healthy, 429 U.S. at 286, 97 S.Ct. at 576). Applying this four-part test, we first examine whether Morgan’s speech related to a matter of “public concern.” Morgan contends that her speech—the complaints of sexual harassment—involves a public concern, because sexual harassment in the workplace is a matter of vital social interest. To fall within the realm of the “public concern,” an employee’s speech must “relat[e] to a[ ] matter of political, social, or other concern to the community.” Connick v. Meyers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983). Absent extraordinary circumstances, however, First Amendment protection remains unavailable 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....” Id. at 147, 103 S.Ct. at 1690. A court must therefore discern the purpose of the employee’s speech—that is, whether she spoke on behalf of the public as a citizen, or whether the employee spoke for herself as an employee. Id. at 146, 103 S.Ct. at 1690; Kurtz, 855 F.2d at 730; Ferrara, 781 F.2d at 1515-16. To accomplish this, a court considers “the content, form and context of a given statement, as revealed by the whole record.” Deremo v. Watkins, 939 F.2d 908, 910 (11th Cir.1991) (citing Connick, 461 U.S. at 147-48, 103 S.Ct. at 1690). A court may consider the employee’s attempts to make the concerns public, along with “the employee’s motivation in speaking.” Id. at 911 (citations omitted). While we heartily agree with Morgan that sexual harassment in the workplace is a matter of important social interest, “‘the mere fact that the topic of the employee’s speech was one in which the public might or would have had a great interest is of little moment.’ ” Kurtz, 855 F.2d at 727 (quoting Terrell v. University of Tex. Sys. Police, 792 F.2d 1360, 1362" }, { "docid": "9716814", "title": "", "text": "first amendment claim, holding that Page’s announcement, during the December 12, 1982, telephone call, of an intention to contact DeLaune’s superior did not touch on a matter of public concern. A state may not discharge an employee for exercising his right to free speech on matters of public concern. Rankin v. McPherson, — U.S. -, 107 S.Ct. 2891, 2896, 97 L.Ed.2d 315 (1987); Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968); Day v. South Park Independent School District, 768 F.2d 696, 700 (5th Cir.1985), cert. denied, 474 U.S. 1101, 106 S.Ct. 883, 88 L.Ed.2d 918 (1986). An employee who contends that his discharge violated the first amendment must establish that his speech addressed a matter of public concern. Rankin, 107 S.Ct. at 2897; Day, 768 F.2d at 700. Only if the employee crosses this initial hurdle need the court address other questions, such as whether the speech was a substantial factor in the employer’s decision, or whether certain interests of the employer counterbalanced the employee’s free-speech interests. Rankin, 107 S.Ct. at 2898; Connick v. Myers, 461 U.S. 138, 146-47, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983); Terrell v. University of Texas System Police, 792 F.2d 1360, 1362-63 (5th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 948, 93 L.Ed.2d 997 (1987). In determining whether an employee’s speech addresses a matter of public concern, this Court considers the speech and its context and independently reviews the record as a whole. Connick, 461 U.S. at 147-48, 103 S.Ct. at 1690; Day, 768 F.2d at 700; Davis v. West Community Hospital, 755 F.2d 455, 461 (5th Cir.1985). The issue is a question of law for the court. Connick, 461 U.S. at 148 n. 7, 103 S.Ct. at 1690 n. 7; Terrell, 792 F.2d at 1362 n. 2. The courts will not interfere with personnel decisions “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.” Connick, 461 U.S. at 147, 103 S.Ct. at 1690. For example, the Supreme" }, { "docid": "21589256", "title": "", "text": "balance test), cert. denied, 483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987). The issue of whether speech involving multiple incidents or subjects should be considered separately in applying the Pickering balancing test arises in a wide spectrum of circumstances. At one extreme is the situation where there is a single instance of speech that touches on interrelated subjects. Because of the difficulty in determining the impact of a portion of a single instance of speech without examining the entire instance, “[t]he task under Pickering is ... to determine whether the employee’s interests in the speech as a whole outweigh the public employer’s interests.” 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) (emphasis added). [A]ny such instances of speech should not be broken down into separate pieces of protected and nonprotected speech, but should rather be treated as protected speech for the purposes of the Pickering balance and the causation determination. In other words, when undertaking the Pickering balancing 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," }, { "docid": "1830219", "title": "", "text": "efforts to communicate the concerns to the public and the employee’s motivation in expressing the concerns are relevant considerations. Kurtz v. Vickrey, 855 F.2d 723, 727 (11th Cir.1988); Morgan, 6 F.3d at 754 & n. 5. The purpose of the threshold requirement is “to prevent the federal courts from becoming ‘a roundtable for employee complaints over internal office af fairs.’” Kurtz, 855 F.2d at 727 (quoting Connick, 461 U.S. at 149, 103 S.Ct. at 1691. Statements which touch both public and personal concerns are considered public concerns for purposes of the threshold issue. Id. The Pickering Balance If the Court determines that plaintiffs speech involves a matter of public concern, the Court must apply the balancing test established in Pickering v. Board of Education. Ferrara, 781 F.2d at 1512; Kurtz, 855 F.2d at 730. The Court must 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). In evaluating this issue the Court looks at a number of factors: (1) whether the speech at issue impedes the government’s ability to perform its duties efficiently, including whether the speech (a) thwarts the mission of the agency, (b) impedes the performance of the speaker’s duties, (c) has a detrimental impact on close working relationships, (d) destroys harmony among co-workers; (2) the manner, time and place of the speech, including (a) choice of words, (b) whether publicly or privately spoken, (c) whether spoken in the work place and (d) the forum and method used; and (3) the context within which the speech is made, including (a) whether the speech is based solely on an interest in improving the performance of the office or whether it arises out of ongoing personnel disputes, (b) the potential for future disruption of the workplace, and (c) the degree of public interest. See Connick, 461 U.S. at 151-55, 103 S.Ct. at 1692-94; Morales" }, { "docid": "21589258", "title": "", "text": "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 speech involves one instance but multiple distinct subjects or the speech involves multiple instances but only one subject. Under those circumstances, the question of whether speech should be balanced separately is fact sensitive and depends on how interrelated are the different aspects of the speech. Factors that could be considered in determining whether the speech is interrelated include the time frame in which the speech occurred, the different audiences to which the speech may have been directed, the continuity of the speech, and the degree to which the different aspects of speech built upon each other to create a cumulative impact on the state employer. Kurtz v. Vickrey, 855 F.2d 723 (11th Cir.1988), is an example of how the time frame of the speech was considered by the court in permitting the division of different instances of speech. In Kurtz, a university professor filed suit because he was denied a promotion allegedly in violation of his First Amendment rights. The speech in question involved several instances over many years concerning different subjects of varying degrees" }, { "docid": "23639395", "title": "", "text": "present. The judgment of the district court is AFFIRMED IN PART, and, in part, REVERSED and REMANDED with directions. . Eyre v. McDonough Power Equip., Inc., 755 F.2d 416, 419 (5th Cir.1985); Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc). . Connick v. Myers, 461 U.S. 138, 147-48, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983). .Rankin v. McPherson, 483 U.S. 378, 386 n. 9, 107 S.Ct. 2891, 2898 n. 9, 97 L.Ed.2d 315 (1987); Fyfe v. Curlee, 902 F.2d 401, 403 (5th Cir.), cert. denied — U.S. -, 111 S.Ct. 346, 112 L.Ed.2d 310 (1990). . Id. 461 U.S. at 147-48, 103 S.Ct. at 1690. . Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968). . Connick, 461 U.S. at 152, 103 S.Ct. at 1692-93; Moore v. City of Kilgore, 877 F.2d 364, 372 (5th Cir.), cert. denied 493 U.S. 1003, 110 S.Ct. 562, 107 L.Ed.2d 557 (1989). . 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). . Id. at 287, 97 S.Ct. at 576. . Id. . Kirkland v. Northside Indep. School Dist., 890 F.2d 794, 798 (5th Cir.1989), cert. denied — U.S. -, 110 S.Ct. 2620, 110 L.Ed.2d 641 (1990); Terrell v. University of Tex. Sys. Police, 792 F.2d 1360, 1362 n. 2 (5th Cir.1986), cert. denied 479 U.S. 1064, 107 S.Ct. 948, 93 L.Ed.2d 997 (1987). . Thompson v. City of Starkville, 901 F.2d 456, 461 (5th Cir.1990); Kirkland, 890 F.2d at 799; Terrell, 792 F.2d at 1362. . Day v. South Park Indep. School Dist., 768 F.2d 696, 700 (5th Cir.1985), cert. denied 474 U.S. 1101, 106 S.Ct. 883, 88 L.Ed.2d 918 (1986); Davis v. West Community Hosp., 755 F.2d 455, 461 (5th Cir.1985); see also Thompson, 901 F.2d at 464-65. . Brawner v. City of Richardson, 855 F.2d 187, 192 (5th Cir.1988); Thompson, 901 at 463. . See Jurgensen v. Fairfax County, 745 F.2d 868, 872 & 888 (4th Cir.1984) (release of report to press which did not find corruption, abuse, waste, or mismanagement in police department did not address" }, { "docid": "14067523", "title": "", "text": "in the protected speech is balanced against the government qua employer’s interest in regulating its workplace and efficiently providing services. Id. Both the threshold “public concern” question and the balancing analysis “are questions of law with respect to which the court is required to examine for itself the statements at issue and the circumstances under which they are made to determine whether or not there is First Amendment protection.” Morales v. Stierheim, 848 F.2d 1145, 1148 (11th Cir.1988). A government employer may not demote or discharge a public employee in retaliation for speech protected under the First Amendment. See Rankin v. McPherson, 488 U.S. 378, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987) (“It is clearly established that a State may not discharge an employee on a basis that infringes that employee’s constitutionally protected interest in freedom of speech.” (citing Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697-98, 33 L.Ed.2d 570 (1972))); Travers v. Jones, 323 F.3d 1294, 1295-96 (11th Cir.2003) (“The law is clearly established that an employer may not demote or discharge a public employee for engaging in protected speech.”). A government employee’s speech is protected under the First Amendment if it touches on a matter of public concern. Akins v. Fulton County, 420 F.3d 1293, 1304 (11th Cir.2005) (“If ... a public employee’s speech is on a matter of public concern, then the speech is protected.”); see also Connick, 461 U.S. at 138, 103 S.Ct. at 1684. In determining whether an employee’s speech touched on a matter of public concern, we look to “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. In doing so we ask: whether the “main thrust” of the speech in question is essentially public in nature or private, Maggio v. Sipple, 211 F.3d 1346, 1352 (11th Cir.2000), whether the speech was communicated to the public at large or privately to an individual, Kurtz v. Vickrey, 855 F.2d 723, 727-30 (11th Cir.1988), and what the speaker’s motivation in speaking was. Morris v. Crow, 117 F.3d 449," }, { "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": "478458", "title": "", "text": "university’s spending priorities related to a matter of public concern. Employing the test set forth in Connick and reiterated in Rankin, we believe that Kurtz’s expressions such as the above are “fairly characterized” as relating to a matter of public concern. These comments are unlike those in Ferrara v. Mills, 781 F.2d 1508 (11th Cir.1986), where this court found a teacher’s statements not to relate to a matter of public concern. The comments at issue in Ferrara related to the teacher’s inability to govern his students (which he blamed on the school’s collegiate registration system) and to his displeasure concerning teacher assignments. Here, in contrast, Kurtz’s complaints were directed at matters beyond the scope of internal management. There is an indication that during the relevant period, the university was going through a “financial crisis.” The financial failure of a state university certainly would be a matter of public concern. Admittedly, Kurtz never went so far as to allege that Vickrey’s or the Board’s management of the university amounted to a “breach of public trust,” see Connick, 461 U.S. at 148, 103 S.Ct. at 1691, but some of his criticisms were directed at ameliorating financial problems. Accordingly, although the question is close as to whether these statements are better characterized as criticisms of internal management decisions or as relating to matters of public concern, we conclude that they may fairly be characterized as relating to matters of public concern. Therefore, summary judgment was improper. B. Once a plaintiff makes the threshold showing that the speech at issue relates to a matter of public concern, the court must turn to the three step process for reviewing an employee’s claim of retaliation for engaging in constitutionally protected speech. See Holley v. Seminole County School District, 755 F.2d 1492, 1500, petition for reh’g denied, 763 F.2d 399 (11th Cir.1985); Czurlanis v. Albanese, 721 F.2d 98, 103 (3d Cir.1983). First, the plaintiff must show that the speech at issue is accorded protection under the Pickering balancing test. See Rankin, 107 S.Ct. at 2898 (“Pickering next requires that we balance [the plaintiff’s] interest in making [the]" }, { "docid": "23115928", "title": "", "text": "order, under Title YII, requiring the Department to reinstate her to her position. After the parties joined issue and engaged in considerable discovery, the district court granted the defendants summary judgment. Morgan now appeals. II. In the discussion that follows, we first address Morgan’s First Amendment claims for damages against Ford, Meadows, and Burden. We then turn to Morgan’s Title VII claim. A. Morgan claims that Ford, Meadows, and Burden abridged her First Amendment right to free speech after she complained to Burden, the Internal Affairs Division, and the Georgia Office of Fair Employment Practices that she was being harassed in the workplace. We agree with the district court that Morgan suffered no constitutional deprivation. A state may not demote or discharge a public employee in retaliation for protected speech. Bryson v. City of Waycross, 888 F.2d 1562, 1565 (11th Cir.1989) (citing Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987)). This circuit has developed a four-part test -to determine whether an employee suffered such retaliation. First, a court must determine “whether the employee’s speech may be ‘fairly characterized as constituting speech on a matter of public concern.’” Bryson, 888 F.2d at 1565 (quoting Rankin, 483 U.S. at 384, 107 S.Ct. at 2896-97 (citation omitted)). See also Kurtz v. Vickrey, 855 F.2d 723 (11th Cir.1988); Ferrara v. Mills, 781 F.2d 1508, 1512 (11th Cir.1986). If so, the district court must “weigh[] the employee’s first amendment interests against ‘the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees.’ ” Bryson, 888 F.2d at 1565 (quoting Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968)). Should the employee prevail on the balancing test, “the fact-finder determines whether the employee’s speech played a ‘substantial part’ in the government’s decision to demote or discharge the employee.” Id. (citing Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)). Finally, if the employee shows that the speech was a substantial motivating factor" }, { "docid": "16692906", "title": "", "text": "the speech of its employees that differ significantly from those it possesses in connection with regulation of the citizenry in general.’’). . Id. at 568, 88 S.Ct. at 1734-35. See also Rankin v. McPherson, - U.S. —, 107 S.Ct. 2891, 2896, 97 L.Ed.2d 315 (1987) (quoting Pickering ). . See Connick, 461 U.S. at 146-54, 103 S.Ct. at 1689-94. . See id. at 148 n. 7, 103 S.Ct. at 1690 n. 7. . Id. at 147-48, 103 S.Ct. at 1690. . Id. at 150, 103 S.Ct. at 1692. . Wilson does not argue that his campaigning rule promoted police professionalism as typical civil service rules do. Nor did Wilson attempt to promulgate a non-partisan \"good government\" edict designed to divorce law enforcement from politics in St. Charles Parish. Instead, Wilson’s rule evinced a sharp partisan purpose: All of his employees could work for his re-election, but none could work for the election of any of his opponents. Wilson can justify such a regulation only if he could demand personal loyalty from each of his employees. . McBee, 730 F.2d at 1015. . 649 F.2d 1193 (5th Cir.1981), cert. denied, 456 U.S. 925, 102 S.Ct. 1969, 72 L.Ed.2d 440 (1982), modified on other grounds, 809 F.2d 1151 (5th Cir.1987). . See McBee, 730 F.2d at 1016-17. . Rankin, — U.S. at —, 107 S.Ct. at 2899. Rankin implies that, depending upon the case, a court may consider other factors affecting the effective fulfillment of a governmental agency’s mission. Id.; see also id., 107 S.Ct. at 2901 (Powell, J., concurring) (concluding that fired employee’s remarks did not “undermine the mission of the office”); McBee, 730 F.2d at 1016 {Connick requires us \"to tailor the analysis to the particular facts of each case”). . 774 F.2d 1295 (5th Cir.1985), cert. denied, 475 U.S. 1140, 106 S.Ct. 1789, 90 L.Ed.2d 335 (1986). . Id. at 1302. . Rankin, — U.S. at -, 107 S.Ct. at 2898 (\"The State bears a burden of justifying the discharge on legitimate grounds.”). . See Connick, 461 U.S. at 150 n. 10, 103 S.Ct. at 1692 n. 10 (‘‘[W]e" }, { "docid": "23115931", "title": "", "text": "discern the purpose of the employee’s speech—that is, whether she spoke on behalf of the public as a citizen, or whether the employee spoke for herself as an employee. Id. at 146, 103 S.Ct. at 1690; Kurtz, 855 F.2d at 730; Ferrara, 781 F.2d at 1515-16. To accomplish this, a court considers “the content, form and context of a given statement, as revealed by the whole record.” Deremo v. Watkins, 939 F.2d 908, 910 (11th Cir.1991) (citing Connick, 461 U.S. at 147-48, 103 S.Ct. at 1690). A court may consider the employee’s attempts to make the concerns public, along with “the employee’s motivation in speaking.” Id. at 911 (citations omitted). While we heartily agree with Morgan that sexual harassment in the workplace is a matter of important social interest, “‘the mere fact that the topic of the employee’s speech was one in which the public might or would have had a great interest is of little moment.’ ” Kurtz, 855 F.2d at 727 (quoting Terrell v. University of Tex. Sys. Police, 792 F.2d 1360, 1362 (5th Cir.1986), cert. denied, 479 U.S. 1064, 107 S.Ct. 948, 93 L.Ed.2d 997 (1987)). Rather, we must determine whether the purpose of Morgan’s speech was to raise issues of public concern, on the one hand, or to further her own private interest, on the other. See Deremo, 939 F.2d at 912 (employees’ request for compensation for remaining silent about sexual harassment did not constitute a matter of public concern); Callaway v. Hafeman, 832 F.2d 414, 417 (7th Cir.1987) (employee’s private complaints of sexual harassment were not matter of public con cern); see also Marshall v. Allen, 984 F.2d 787, 796 (7th Cir.1993) (male co-worker’s verbal support for victims of sexual harassment constituted speech touching upon a public concern). In the case at hand, Morgan’s speech largely focused upon how Ford behaved toward her and how that conduct affected her work. The speech that Morgan cites is in the form of complaints to official bodies—the Superintendent of ACMI, Internal Affairs, and the Office of Fair Employment Practices. She did not relate her concerns about sexual harassment" }, { "docid": "8571946", "title": "", "text": "that he \"had better not -ever depend upon him [Lindley] as a backup unit.” . Givhan, decided in 1979, precedes Connick and, therefore, makes no reference to the public concern threshold test. However, we note that Connick explicitly states that the speech of the plaintiff in Givhan addressed a matter of public concern. See Connick, 461 U.S. at 148 n. 8, 103 S.Ct. at 1691 n. 8; see also Kurtz v. Vickrey, 855 F.2d 723, 727 n. 4 (11th Cir.1988) (\"Although Givhan was decided prior to Connick, and thus contains no discussion of the public concern threshold test, the Court's decision in Connick made clear that Mrs. Givhan’s speech, which protested alleged racial discrimination, related to a matter of public concern.”). . In analyzing qualified immunity issues, this circuit normally requires a two step process: (1) \"[t]he initial determination is whether the claim itself is viable, whether the actions of the plaintiff are constitutionally protected) ]\" and (2) if so, the next step is an evaluation of whether the \"constitutional right asserted was 'clearly established' at the time of [the public official's] conduct so that a reasonable official would have understood that his conduct violated that right.\" Brawner, 855 F.2d at 191. In relation to the first step of this test, this circuit generally requires not only a determination of whether speech is public or private in nature, but also— if the speech at issue is found to be public in nature — a balancing of \"the interests 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, 391 U.S. at 568, 88 S.Ct. at 1734-35. See also Brawner, 855 F.2d at 191-93; Noyola v. Texas Dept. of Human Resources, 846 F.2d 1021, 1025-26 (5th Cir.1988). However, as no one has raised any arguments relating to the balancing issue on appeal {see, supra, n. 4), we do not discuss it at this point. . Aware of the necessity for plaintiffs invoking section 1983 to" }, { "docid": "1830218", "title": "", "text": "Issue — Public Concern As a threshold issue, the Court must determine, “whether the employee’s speech may be ‘fairly characterized as constituting speech on a matter of public concern.’ ” Morgan v. Ford, 6 F.3d 750, 754 (11th Cir.1993), reh’g en banc denied, 15 F.3d 1099 (1994) (citations omitted); Ferrara v. Mills, 781 F.2d 1508, 1512, 1515 (11th Cir. 1986) (citing Connick v. Myers, 461 U.S. 138, 147-48, 103 S.Ct. 1684, 1690-91, 75 L.Ed.2d 708 (1983)). In making this determination the Court looks to “the content, form, and context of the given statement, as revealed by the whole record.” Ferrara, 781 F.2d at 1512. “A court must therefore discern the purpose of the employee’s speech — that is, whether he spoke on behalf of the public as a citizen, or whether the employee spoke for himself as an employee.” Id. The Court “must determine whether the purpose of [the employee’s] speech was to raise issues of public concern, on the one hand, or to further his own private interest, on the other.” Id. The employee’s efforts to communicate the concerns to the public and the employee’s motivation in expressing the concerns are relevant considerations. Kurtz v. Vickrey, 855 F.2d 723, 727 (11th Cir.1988); Morgan, 6 F.3d at 754 & n. 5. The purpose of the threshold requirement is “to prevent the federal courts from becoming ‘a roundtable for employee complaints over internal office af fairs.’” Kurtz, 855 F.2d at 727 (quoting Connick, 461 U.S. at 149, 103 S.Ct. at 1691. Statements which touch both public and personal concerns are considered public concerns for purposes of the threshold issue. Id. The Pickering Balance If the Court determines that plaintiffs speech involves a matter of public concern, the Court must apply the balancing test established in Pickering v. Board of Education. Ferrara, 781 F.2d at 1512; Kurtz, 855 F.2d at 730. The Court must 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.”" }, { "docid": "12081820", "title": "", "text": "Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972). In order to prevail on his claim, Morales must show that his statements addressed a matter of public concern. If the speech does not touch upon a matter of public concern, then the court may not ordinarily scrutinize OCED’s decision to reassign Morales. Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708 (1983); Ferrara v. Mills, 781 F.2d 1508, 1512 (11th Cir.1986). If the speech at issue does involve a matter of public concern, then the Pickering balancing process is triggered. The determination of whether a public employer had properly discharged an employee for engaging in speech requires a balance between the interests of the employee as a citizen in commenting upon matters of public concern and the interest of the state, as employer, in promoting the efficiency of the public services it performs. Rankin v. McPherson, - U.S. -, 107 S.Ct. 2891, 2896, 97 L.Ed.2d 315 (1987); Connick v. Myers, 461 U.S. 138, 149-54, 103 S.Ct. 1684, 1691-94, 75 L.Ed.2d 708 (1983); Ferrara v. Mills, 781 F.2d 1508, 1512 (11th Cir.1986). We first address whether Morales’ speech addressed a matter of public concern, and then turn to the Pickering balancing process. Both issues are questions of law with respect to which the court is required to examine for itself the statements at issue and the circumstances under which they are made to determine whether or not there is First Amendment protection. Rankin v. McPherson, supra; Connick v. Myers, 461 U.S. at 148 n. 7, 150 n. 10, 103 S.Ct. at 1690 n. 7, 1692 n. 10. A. Speech Addressed Public Concern The threshold question of whether Morales’ statements constituted speech 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.” Connick, 461 U.S. at 147-48, 103 S.Ct. at 1690. In determining whether Morales’ statements were constitutionally protected, the district court stated without explanation that those statements touched upon a matter of public concern. The parties stipulated" }, { "docid": "23013057", "title": "", "text": "clings to its assertion that Johnston’s speech is not protected. HCFD describes the Speed EEO hearing as a closed meeting of the Harris County Commissioners Court convened to review an issue of intragovernment concern involving only one employee. Johnston appeared at the hearing in his capacity as an individual employee, addressing only a personnel dispute between HCFD and Speed. We conclude that Johnston’s testimony was protected speech and affirm. A state may not condition public employment on grounds that infringe on its employees’ constitutionally protected right to freedom of expression. Rankin v. McPherson, 483 U.S. 378, 383, 107 S.Ct. 2891, 2896, 97 L.Ed.2d 315, 324 (1987); Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 1687, 75 L.Ed.2d 708, 716-17 (1983); Page v. DeLaune, 837 F.2d 233, 237 (5th Cir.1988). Determining whether a public employer has discharged an employee in violation of the First Amendment requires us to weigh competing interests; we balance the employee’s interest, as a citizen, in commenting on issues of public concern against the state’s interest, as an employer, in “promoting the efficiency of the public services it performs through its employees.” Rankin, 483 U.S. at 384, 107 S.Ct. at 2896, 97 L.Ed.2d at 324. As we strike this balance, our threshold inquiry is whether the employee’s speech addressed a matter of public concern. Id., 483 U.S. at 384, 107 S.Ct. at 2896, 97 L.Ed.2d at 324; Connick, 461 U.S. at 146, 103 S.Ct. at 1689, 75 L.Ed.2d at 719; Page, 837 F.2d at 237; Brinkmeyer v. Thrall Independent School District, 786 F.2d 1291, 1294 (5th Cir.1986). We do not review the employee’s words in a vacuum. Rather, we decide whether speech addresses a matter of public concern with reference to 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, 75 L.Ed.2d at 720. The issue is one of law that we decide independently on appeal. Rankin, 483 U.S. at 386 & n. 9, 107 S.Ct. at 2897 & n. 9, 97 L.Ed.2d at 325 & n. 9; Gonzales v." } ]

[ { "docid": "18317788", "title": "", "text": "The matter arose in this way. After the 1947 conference with the revenue agents, Kiamie’s representative Gellin promised agent Troy that he would prepare a schedule of the unrecorded sales. Thereafter, Kiamie supplied Gellin with the necessary records and with his chief bookkeeper, Bernstein, who prepared the schedule under Gellin’s supervision. This schedule of unrecorded sales, Exhibit 229, was initially received in evi dence as a documentary summary based on Gellin’s testimony as to its preparation. Later in the trial, however, the trial court came to consider it as an admission of defendants and the jury was permitted to give it that effect. The related schedule of unrecorded cash purchases, Exhibit MQ, was Kia-mie’s explanation of how the proceeds of the unrecorded sales had been used. It was not admitted with 229 because Gel-lin testified that it had not been prepared under his supervision and that he had not examined the underlying documents allegedly supporting it. Although Kiamie claimed that these documents once existed, they were never produced and were said to be missing at the time of the trial. Despite this absence of documentary support MQ was subsequently admitted as a 1947 explanation on the part of appellants that the proceeds of unrecorded sales were used to make cash purchases, but it was not admitted as proof of the facts stated therein. We think that this ruling was not erroneous. MQ was nothing more than unsupported hearsay. It would not have been admissible at all were it not for the fact that Kiamie had attached it to 229 before delivering them both to the Government, 229 having been properly treated as an admission, MQ could be treated as an exculpatory portion of an admission or as an explanation of an admission. See Waters v. Kings County Trust Co., 2 Cir., 1944, 144 F.2d 680, 682, certiorari denied 1944, 323 U.S. 769, 65 S.Ct. 121, 89 L.Ed. 615; Jayne v. Mason & Dixon Lines, 2 Cir., 1941, 124 F.2d 317, 319; 7 Wigmore, Evidence §§ 2100, 2113 (3d ed. 1940). It could not properly be given any further effect. The" } ]

[ { "docid": "23276836", "title": "", "text": "the government was required to eliminate all non-income items from its bank deposit proof); Siravo v. United States, 377 F.2d 469, 473-474 (1st Cir.1967) (explaining that, in a section 7206(1) case, “evidence of unexplained receipts shifts to the taxpayer the burden of coming forward with evidence as to the amount of offsetting expenses, if any”). In Holland v. United States, 348 U.S. 121, 135-136, 75 S.Ct. 127, 99 L.Ed. 150 (1954), the Supreme Court held that, in a net worth case, a case built “solely on the approximations and circumstantial inferences of a net worth computation,” the government makes out a prima facie case of tax evasion when it has proved the existence of a likely source of taxable income sufficient to account for a taxpayer’s net worth increases and has also investigated all “relevant leads furnished by the taxpayer — leads reasonably susceptible of being checked, which, if true, would establish the taxpayer’s innocence.” In so limiting the government’s investigative responsibilities, the Supreme Court stated: Any other rule would burden the Government with investigating the many possible nontaxable sources of income, each of which is as unlikely as it is difficult to disprove. This is not to say that the Government may disregard explanations of the defendant reasonably susceptible of being cheeked. But where relevant leads are not forthcoming, the Government is not required to negate every possible source of nontaxable income, a matter peculiarly within the knowledge of the defendant. Holland, 348 U.S. at 138, 75 S.Ct. 127; cf. United States v. Lawhon, 499 F.2d 352, 356-57 (5th Cir.1974)(explaining that in a case where the government bases its proof on specific items, the “leads doctrine” applicable in circumstantial evidence — or net worth — cases does not apply; in such a case, the government does not bear the burden of trying to discover and exclude all possible non-income items from its evidence of taxable income), cert. denied, 419 U.S. 1121, 95 S.Ct. 804, 42 L.Ed.2d 820 (1975). In this case, the district court correctly instructed the jury that Tarwater had no obligation to present any evidence at all," }, { "docid": "23199826", "title": "", "text": "was paid in excess of $30,000.00 for services rendered in 1978 (Marabelles reported $11,653.00 in gross receipts for 1978). . In addition to the above evidence, the Government cites case law indicating that: (1) in “specific items” cases, the Government has no burden to follow all “reasonable leads” as it does in circumstantial evidence (net worth) cases, United States v. Lawhon, 499 F.2d 352, 356-57 (5th Cir.1974), cert. denied, 419 U.S. 1121, 95 S.Ct. 804, 42 L.Ed.2d 820 (1975); and (2) the burden is on the defendant to prove that he had allowable deductions that were not shown in his return, once the Government establishes unreported income and allows the deductions claimed by the defendant in this return and others that it can calculate without his assistance, Elwert v. United States, 231 F.2d 928, 933 (9th Cir.1956); see also Marks v. United States, 391 F.2d 210, 211 (9th Cir.) (in “specific items” case, burden of proof for deductions is on defendant), cert. denied, 393 U.S. 839, 89 S.Ct. 116, 21 L.Ed.2d 109 (1968). . Marabelles also argues the evidence would have been relevant to the issue of willfulness. If he owed no additional taxes because of his business expenses, Marabelles contends, he could not possess the requisite intent to defraud the Government. . In Cohan, the appellate court remanded to the Board of Tax Appeals with instructions to make some estimate of George M. Cohan’s deductible entertainment expenses in light of the Board’s express finding that Cohan had spent “considerable sums” and that such were allowable expenses. 39 F.2d at 543-44. The court noted the inconsistency between the Board’s finding that considerable allowable expenditures had been made and its disallowance of the deduction entirely because of the lack of specific proof. Id." }, { "docid": "23199825", "title": "", "text": "did not need another jury instruction to enable him adequately to present and argue his “business expense” theory, nor did the jury need another instruction to authorize its consideration of the theory or the evidence he presented. The District Court did not commit reversible error when it refused the requested jury instruction. The judgments of conviction are AFFIRMED. . The specific items method of proof has been described in the following manner: The specific item method is ... direct in its operation. The usual strategy ... is for the Government to produce evidence of the receipt of specific items of reportable income by the defendant that do not appear on his income tax return or appear in diminished amount. United States v. Horton, 526 F.2d 884, 886 (5th Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 67, 50 L.Ed.2d 81 (1976). . More specifically, the Government argues that the cancelled checks establish: (1) that Marabelles was paid $20,730.25 for services rendered in 1977 (Marabelles reported $10,-083.00 in gross receipts for 1977); and (2) that Marabelles was paid in excess of $30,000.00 for services rendered in 1978 (Marabelles reported $11,653.00 in gross receipts for 1978). . In addition to the above evidence, the Government cites case law indicating that: (1) in “specific items” cases, the Government has no burden to follow all “reasonable leads” as it does in circumstantial evidence (net worth) cases, United States v. Lawhon, 499 F.2d 352, 356-57 (5th Cir.1974), cert. denied, 419 U.S. 1121, 95 S.Ct. 804, 42 L.Ed.2d 820 (1975); and (2) the burden is on the defendant to prove that he had allowable deductions that were not shown in his return, once the Government establishes unreported income and allows the deductions claimed by the defendant in this return and others that it can calculate without his assistance, Elwert v. United States, 231 F.2d 928, 933 (9th Cir.1956); see also Marks v. United States, 391 F.2d 210, 211 (9th Cir.) (in “specific items” case, burden of proof for deductions is on defendant), cert. denied, 393 U.S. 839, 89 S.Ct. 116, 21 L.Ed.2d 109 (1968). . Marabelles" }, { "docid": "320374", "title": "", "text": "The statement complained of was made in answer to a question by defense counsel as to why Mr. Pagnotta’s testimony was not reflected in the accounts receivable figures. The witness explained that she had to accept one figure or another for her summary. She further explained that she understood Mr. Pagnotta’s testimony to be that he made payments to Allen during the period in question, but yet the amount of his debt to Allen remained the same. Trial counsel brought out in further cross-examination that Mrs. Kihlken’s understanding of Mr. Pagnotta’s testimony may have been wrong. It is important to note, however, that on redirect examination Mrs. Kihlken testified concerning the effect including the payments testified to by Mr. Pagnotta would have on the net worth summary. All of the facts were before the jury for the jury’s resolution. We find no error in this contention. V We find no error in the court’s failing to record the testimony of Special Agent Pope before the Grand Jury. United States v. Battisti, 486 F.2d 961 (6th Cir. 1973). The court did not err in admitting the summary prepared by the government’s expert witness as it was based on facts established by evidence in the record. United States v. Bartone, 400 F.2d 459 (6th Cir. 1968), cert. denied 393 U.S. 1027, 89 S.Ct. 631, 21 L.Ed.2d 571 (1969). VI During IRS Agent Tracy’s direct testimony, the defense moved the court for an order requiring the government to produce his Referral Report, which is the form used for referring the case to the Intelligence Division and his Revenue Agent’s Report. The defense did not ask for the production of Special Agent Pope’s criminal Reference Report. It was the claim of the defense that both these Reports of Agent Tracy were statements required to be produced under the Jencks Act, 18 U.S.C. § 3500. Attached to the Referral Report were six schedules containing net worth computations which were the basis for the Report. The District Court ordered the government to produce the schedules but not the Report itself which he concluded was merely an" }, { "docid": "21609754", "title": "", "text": "argues that he was entitled to the full SAR rather than the redacted version provided by the government, under Fed.R.Crim.P. 16(a)(1)(A) and the Jencks Act. The district court found that the materials relating to the net worth computations of appellant’s taxable income and to the computations of tax due and owing were “reports, memoranda, or other internal government documents” under Fed.R.Crim.P. 16(a)(2) and were therefore exempt from discovery. Rule 16(a)(2) provides that reports, mem-oranda, or other internal government documents made by the attorney for the government or other government agents in connection with the investigation or prosecution of the case are not subject to disclosure. Since Rule 16 clearly recognizes “the prosecution’s need for protecting communications concerning legitimate trial tactics,” United States v. Pfingst, 490 F.2d 262, 275 n. 14 (2d Cir.1973), cert. denied, 417 U.S. 919, 94 S.Ct. 2625, 41 L.Ed.2d 224 (1974), we hold that the district court did not abuse its discretion in ruling that the analysis of tax liability was not discoverable under Rule 16, see 2 C. Wright, Federal Practice and Procedure § 261 (1982). Defendant also claims that the entire SAR should have been disclosed under the Jencks Act. The district court conducted an in camera inspection of the redacted SAR and the full SAR. The court determined that the redacted SAR was producible under the Jencks Act and ordered it provided to the defense for the purpose of its cross-examination of Agent Kramer. The court also compared the redacted SAR with the full SAR and determined that nothing else contained in the full SAR related to Agent Kramer’s direct testimony. The district court’s determination, after an in camera inspection, that the full SAR need not be disclosed was within the court’s discretion. Singh, 628 F.2d at 765; Pacelli, 491 F.2d at 1118. III. ADMISSION OF SUMMARY CHARTS Appellant claims error in the district court’s decision to admit summary charts prepared by the government. We will not overturn the court’s decision to admit summary charts in the absence of abuse of discretion. United States v. Pinto, 850 F.2d 927, 935 (2d Cir.), cert. denied," }, { "docid": "21609764", "title": "", "text": "was foreclosed under Fed.R.Evid. 611(a) and (b). Rule 611(b) provides that “cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness.” The district court has broad discretion to determine the scope of cross-examination. United States v. Bari, 750 F.2d 1169, 1178 (2d Cir.1984), cert. denied, 472 U.S. 1019, 105 S.Ct. 3482, . 87 L.Ed.2d 617 (1985). We will not overturn an exercise of the district court’s discretion absent a clear showing of abuse. Id. at 1178-79. Here, we find no such abuse of discretion. Appellant’s attempted cross-examination with respect to net worth computations was outside the scope of agent Kramer’s direct testimony. In addition, the court indicated that the government would be required to make agent Kramer available if the defense chose to call him as a witness. Appellant also claims that the district court erred in limiting the cross-examination of two rebuttal witnesses, IRS agent Kenneth Faustine and Michael Hirsch. The government recalled agent Faustine for the limited purpose of testifying regarding adjustments made in the computations for non-taxable funds transferred from Greece. Defense counsel attempted to cross-examine agent Faustine concerning loans which were treated in the net worth computation not as adjustments for funds from Greece, but as personal loans payable. We find no abuse of discretion in the district court’s limitation of this line of cross-examination. On direct, Faustine had not been asked about informal loans from friends or relatives or personal loans payable of any kind. We also find no abuse of discretion in the district court’s limitation of the cross-examination of rebuttal witness Michael Hirsch. Hirsch had testified in the government’s case-in-chief about his sale of the Fairfield diner to appellant in 1982. On rebuttal, the government called Hirsch to elicit his gross receipts from that diner for 1981 and 1982. Defense counsel on cross-examination attempted to question Hirsch about the nature of the diner and about the circumstances of the sale to appellant. In view of the limited scope of Hirsch’s testimony on rebuttal, the district court’s refusal to allow defense counsel to pursue" }, { "docid": "10068183", "title": "", "text": "discretion of the grantor or a nonadverse party, or both, may be ... distributed to the grantor ... [or] held or accumulated for future distribution to the grantor .... Sorrentino’s power to amend or alter the terms of the Trust also amounted to a power of revocation under 26 U.S.C. § 676(a): “The grantor shall be treated as the owner of any portion of a trust ... where at any time the power to revest in the grantor title to such portion is exercisable by the grantor or a non-adverse party, or both.” See also Treas.Reg. § 1.676(a)-1; Schulz v. Commissioner, 686 F.2d 490, 494-96 (7th Cir.1982). Under either § 677(a) or § 676(a), Sor-rentino could be treated as the owner of at least an undivided 90% interest in the Trust, and the Government properly allocated to him a pro rata 90% share of each item of income, deduction and credit in calculating his net worth. See Treas.Reg. § 1.671-3(a)(3). The court’s instruction was therefore correct. II. EVIDENTIARY RULINGS Defendant also assigns as error several evidentiary rulings. He complains first of all that a summary exhibit prepared by his accountant, which showed $60,000 to $80,000 of nontaxable proceeds from antique sales in each indictment year, was improperly excluded. It is well established that summary exhibits such as net worth schedules, whether offered by the prosecution or the, defense, are admissible for the convenience of the jury in understanding and evaluating evidence independently established in the record; it is equally clear that purported summaries containing assertions not otherwise supported by the record are not admissible. Oertle v. United States, 370 F.2d 719, 727-28 (10th Cir.1966), cert, denied, 387 U.S. 943, 87 S.Ct. 2075, 18 L.Ed.2d 1329 (1967); United States v. Moody, 339 F.2d 161, 162 (6th Cir.1964), cert, denied, 386 U.S. 1003, 87 S.Ct. 1347,18 L.Ed.2d 432 (1967). Here, the prosecution’s net worth schedule was based exclusively on primary evidence which was available to test the accuracy of the summary; the agent who prepared the chart was available for cross-examination concerning disputed items; and the purpose and effect of the chart" }, { "docid": "10068175", "title": "", "text": "v. Giacalone, 574 F.2d 328, 332 (6th Cir.), cert, denied, 439 U.S. 834, 99 S.Ct. 114, 58 L.Ed.2d 129 (1978); United States v. Penosi, 452 F.2d 217, 219-20 (5th Cir.1971), cert, denied, 405 U.S. 1065, 92 S.Ct. 1495, 31 L.Ed.2d 795 (1972). We now turn to the four areas in which the defendant assigns substantial error. I. JURY INSTRUCTIONS In his charge to the jury, Judge Caffrey set forth the elements of attempted tax evasion under § 7201, and explained the Government’s burden of proof under the net worth method. On the issue of taxable source, he stated: “The burden of proof is on the government to establish beyond a reasonable doubt that the funds reflected by his increased net worth or by his nondeductible expenditures came from taxable rather than nontaxable sources.” He further explained that taxable income would include compensation for personal services, gain from business or commercial dealings, and interest or dividends, while nontaxable receipts would include gifts, inheritances, life insurance proceeds, loans, and reimbursement for purchases made on behalf of other people. Judge Caffrey properly instructed the jury that in deciding whether the Government had met its burden it should consider evidence of a likely source of taxable income and evidence tending to negate any nontaxable source, as well as any failure on the Government’s part to track down any leads reasonably susceptible of being checked. On the specific issue of antique sales, which the defendant claimed as a nontaxable source of funds, Judge Caffrey explained that the proceeds of any antique sales would not necessarily be nontaxable unless the basis was equal to or greater than the sales price. He instructed the jury that if they found that Sorrentino had failed to provide leads before trial as to when the antiques in question were originally purchased and how much was paid for them, then the Government was not required to have investigated the basis of the alleged antiques and was permitted to assume that the proceeds were taxable. If you find that no reasonable lead was given to the government which was adequate to enable" }, { "docid": "320375", "title": "", "text": "Cir. 1973). The court did not err in admitting the summary prepared by the government’s expert witness as it was based on facts established by evidence in the record. United States v. Bartone, 400 F.2d 459 (6th Cir. 1968), cert. denied 393 U.S. 1027, 89 S.Ct. 631, 21 L.Ed.2d 571 (1969). VI During IRS Agent Tracy’s direct testimony, the defense moved the court for an order requiring the government to produce his Referral Report, which is the form used for referring the case to the Intelligence Division and his Revenue Agent’s Report. The defense did not ask for the production of Special Agent Pope’s criminal Reference Report. It was the claim of the defense that both these Reports of Agent Tracy were statements required to be produced under the Jencks Act, 18 U.S.C. § 3500. Attached to the Referral Report were six schedules containing net worth computations which were the basis for the Report. The District Court ordered the government to produce the schedules but not the Report itself which he concluded was merely an inter-departmental communication and not producible. Thus, with the exception of the two page Report itself and one preliminary computation which did not relate to Agent Tracy’s testimony, the defense was given everything in the Report. The court also ruled that the Revenue Agent’s Report was not producible. The Report consisted merely of net worth schedules of use in computing Allen’s income tax liability for civil purposes. It is dated a year after the date of the Referral Report. Both Reports were sealed and transmitted to this court. The defense offered in evidence the schedules attached to Agent Tracy’s Referral Report and a few other exhibits and then rested at the close of the government’s case in chief without offering any evidence except the schedules and other exhibits. There was extensive cross-examination of Agent Tracy concerning his net worth computations and also of Adele Kihlken, the government’s expert who testified concerning the summary which she prepared. As previously stated, the defense did not even move for the production of Special Agent Pope’s Criminal Reference Report. It" }, { "docid": "10068186", "title": "", "text": "cross-examination, defense counsel opened the issue of why certain proceeds from flea market sales claimed by Chester Warner were not included as nontaxable funds available to the defendant on the Government’s net worth schedule. On redirect, Killion explained that he had taken Warner’s testimony concerning the flea market sales into consideration but had not included the sales on the schedule because there was inadequate corroborating testimony and he did not find Warner’s testimony credible. The district court immediately instructed the jury that the decision whether to accept Warner’s testimony as credible was to be made by the jury. It was made clear to the jury on recross that Warner’s testimony, if believed, would reduce the amounts in the Government’s net worth schedule by $5,000 to $10,000 per year. On recross, defense counsel also inquired why Killion had not found Warner’s testimony credible, and elicited the answer that Warner had testified untruthfully before the grand jury and had shown a selective memory. On re-redirect, Killion elaborated further on his reasons for disbelieving Warner, including Warner’s failure to report income on his tax returns. On re-recross, defense counsel attempted to show that prosecution witness Robert Hedrick had also failed to file income tax returns. The court ruled that Hedrick’s credibility had not been raised on re-redi rect, Killion elaborated further on his reasons for disbelieving Warner, including Warner’s failure to report income on his tax returns. On re-recross, defense counsel attempted to show that prosecution witness Robert Hedrick had also failed to file income tax returns. The court ruled that Hedrick’s credibility had not been raised on re-redirect and was therefore outside the permissible scope of re-recross. This was well within the court’s discretion, for “[m]ore strictly than with cross-examination, a court may limit recross to the subject matter of redirect and may exercise extensive discretion over its scope.” United States v. Honneus, 508 F.2d 566, 573 (1st Cir.1974), cert, denied, 421 U.S. 948, 95 S.Ct. 1677, 44 L.Ed.2d 101 (1975); see also Fed.R.Evid. 611(a), (b). Defendant’s next objection goes to the court’s limitation of his- cross-examination of another prosecution witness, Special" }, { "docid": "21609763", "title": "", "text": "AND HIRSCH Appellant contends that the district court erred in limiting cross-examination of witnesses Kramer, Faustine and Hirsch. Agent Kramer testified on direct examination about appellant’s admissions during the course of the investigation and his efforts in following the leads provided by appellant concerning non-taxable sources of funds. The government’s charts and the underlying summaries, memos and reports upon which they were based reflected the work of agent Kramer. Although Kramer was the investigating agent on the case, he had retired from the IRS. Agent Faustine, Kramer’s supervisor, and agent Genova testified that they had replaced Kramer as case agents and had assumed responsibility for the case. Kramer did not testify about net worth computations. Agent Faustine testified about the net worth plus expenditures computation, and revenue agent San-del testified concerning the actual calculation of tax due and owing. Defense counsel attempted to cross-examine Kramer regarding the part of his investigation leading to the net worth computations. The district court determined that this area of inquiry was beyond the scope of direct examination and therefore was foreclosed under Fed.R.Evid. 611(a) and (b). Rule 611(b) provides that “cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness.” The district court has broad discretion to determine the scope of cross-examination. United States v. Bari, 750 F.2d 1169, 1178 (2d Cir.1984), cert. denied, 472 U.S. 1019, 105 S.Ct. 3482, . 87 L.Ed.2d 617 (1985). We will not overturn an exercise of the district court’s discretion absent a clear showing of abuse. Id. at 1178-79. Here, we find no such abuse of discretion. Appellant’s attempted cross-examination with respect to net worth computations was outside the scope of agent Kramer’s direct testimony. In addition, the court indicated that the government would be required to make agent Kramer available if the defense chose to call him as a witness. Appellant also claims that the district court erred in limiting the cross-examination of two rebuttal witnesses, IRS agent Kenneth Faustine and Michael Hirsch. The government recalled agent Faustine for the limited purpose of testifying regarding adjustments made" }, { "docid": "10068187", "title": "", "text": "to report income on his tax returns. On re-recross, defense counsel attempted to show that prosecution witness Robert Hedrick had also failed to file income tax returns. The court ruled that Hedrick’s credibility had not been raised on re-redi rect, Killion elaborated further on his reasons for disbelieving Warner, including Warner’s failure to report income on his tax returns. On re-recross, defense counsel attempted to show that prosecution witness Robert Hedrick had also failed to file income tax returns. The court ruled that Hedrick’s credibility had not been raised on re-redirect and was therefore outside the permissible scope of re-recross. This was well within the court’s discretion, for “[m]ore strictly than with cross-examination, a court may limit recross to the subject matter of redirect and may exercise extensive discretion over its scope.” United States v. Honneus, 508 F.2d 566, 573 (1st Cir.1974), cert, denied, 421 U.S. 948, 95 S.Ct. 1677, 44 L.Ed.2d 101 (1975); see also Fed.R.Evid. 611(a), (b). Defendant’s next objection goes to the court’s limitation of his- cross-examination of another prosecution witness, Special Agent Richard Walsh. On cross-examination, defense counsel offered a photocopied excerpt from a newspaper or brochure in which the defendant was quoted as saying that he had inherited the antique collection in his home from his late father. The excerpt was admitted on the limited issue of the adequacy of the Government’s pretrial investigation, and not to show the value of antiques or the truth of any quoted statement. On recross, the court permitted defense counsel to point out the defendant’s quoted statement in the ex: eerpt and question Walsh concerning his investigation, but not to read the excerpt aloud before the jury. Walsh summarized the passage in question as suggesting that Sorrentino “inherited antiques from his father when he passed on,” and then described his investigation of probate and tax records, as well as his interviews with the defendant’s two sisters. The court acted well within its discretion in refusing to permit defense counsel to read the excerpt aloud: such a reading was not only outside the limited purpose for which the excerpt had" }, { "docid": "10068185", "title": "", "text": "were made clear to the jury. The prosecution’s net worth summary was therefore admissible. United States v. Lawhon, 499 F.2d 352, 357 (5th Cir.1974), cert, denied, 419 U.S. 1121, 95 S.Ct. 804, 42 L.Ed.2d 820 (1975). By contrast, there was virtually no documentation for the defendant’s alleged antique sales: both the amount of the proceeds and the assumed basis figures were taken not from documents in evidence but from the defendant’s own unsupported speculation. Under the circumstances, the court acted within its discretion in excluding the defendant’s potentially misleading and prejudicial exhibit. See Oertle, 370 F.2d 727-28; United States v. Shavin, 320 F.2d 308, 312 (7th Cir.), cert, denied, 375 U.S. 944, 84 S.Ct. 349, 11 L.Ed.2d 273 (1963); United States v. Kiamie, 258 F.2d 924, 932-33 (2d Cir.), cert, denied, 358 U.S. 909, 79 S.Ct. 236, 3 L.Ed.2d 230 (1958). Defendant also objects to the scope of direct and cross-examination permitted by the district court with respect to the prosecution’s witness Gerald Killion, the revenue agent who prepared the Government’s net worth schedule. On cross-examination, defense counsel opened the issue of why certain proceeds from flea market sales claimed by Chester Warner were not included as nontaxable funds available to the defendant on the Government’s net worth schedule. On redirect, Killion explained that he had taken Warner’s testimony concerning the flea market sales into consideration but had not included the sales on the schedule because there was inadequate corroborating testimony and he did not find Warner’s testimony credible. The district court immediately instructed the jury that the decision whether to accept Warner’s testimony as credible was to be made by the jury. It was made clear to the jury on recross that Warner’s testimony, if believed, would reduce the amounts in the Government’s net worth schedule by $5,000 to $10,000 per year. On recross, defense counsel also inquired why Killion had not found Warner’s testimony credible, and elicited the answer that Warner had testified untruthfully before the grand jury and had shown a selective memory. On re-redirect, Killion elaborated further on his reasons for disbelieving Warner, including Warner’s failure" }, { "docid": "21609755", "title": "", "text": "and Procedure § 261 (1982). Defendant also claims that the entire SAR should have been disclosed under the Jencks Act. The district court conducted an in camera inspection of the redacted SAR and the full SAR. The court determined that the redacted SAR was producible under the Jencks Act and ordered it provided to the defense for the purpose of its cross-examination of Agent Kramer. The court also compared the redacted SAR with the full SAR and determined that nothing else contained in the full SAR related to Agent Kramer’s direct testimony. The district court’s determination, after an in camera inspection, that the full SAR need not be disclosed was within the court’s discretion. Singh, 628 F.2d at 765; Pacelli, 491 F.2d at 1118. III. ADMISSION OF SUMMARY CHARTS Appellant claims error in the district court’s decision to admit summary charts prepared by the government. We will not overturn the court’s decision to admit summary charts in the absence of abuse of discretion. United States v. Pinto, 850 F.2d 927, 935 (2d Cir.), cert. denied, — U.S. -, 109 S.Ct. 174, 102 L.Ed.2d 143 (1988) and — U.S. -, 109 S.Ct. 323, 102 L.Ed.2d 341 (1988). Appellant contends that the district court erred in admitting three large charts on which were set out net worth tax computations. Appellant claims that the charts should not have been admitted at trial because they had not been disclosed during pretrial discovery. In its pretrial motions for discovery, appellant requested access to the IRS' net worth computations as well as access to any and all papers, documents or tangible objects which were in the possession of the government, which were material to the defense, or which were intended for use by the government as evidence at trial. The district court ruled that the actual computations and analysis of appellant’s tax liability constituted government reports, memoranda, or other internal documents not discoverable under Rule 16(a)(2). Prior to trial, the defense specifically requested, pursuant to Rules 16(d)(1) and (2), that the court preclude the government from introducing evidence in its case in chief any Rule 16" }, { "docid": "15763162", "title": "", "text": "taxpayer to a reduction in the alleged understatement of his taxes.” United States v. Lawhon, 499 F.2d 352, 356-357 (5th Cir. 1974), cert. denied, 419 U.S. 1121, 95 S.Ct. 804, 42 L.Ed.2d 820 (1975). The government concluded that the testimony available from the partners would not substantiate the defendant’s loan theory. Appellee’s Brief, at 35. The government is not required to present their case as well as defendant’s rebuttal. The burden of proof was not impermissibly shifted in this case. The government established a prima facie case and the defendant remained silent at his own peril. Holland v. United States, 348 U.S. at 138-139, 75 S.Ct. at 136-137. We find the appellant’s argument regarding the agent’s failure to make use of the grand jury testimony to be without merit. The government proved its case. Accordingly, appellant’s conviction is AFFIRMED. . “The net worth method, it seems, has evolved from the final volley to the first shot in the government’s battle for revenue, and its use in the ordinary income bracket cases greatly increases the chance for error.” Holland v. United States, 348 U.S. 121, 126-127, 75 S.Ct. 122, 130-31, 99 L.Ed. 150 (1954). . The record is not clear as to which non-corporate entity “Business” refers to. . The government also introduced evidence of two potential taxable sources of income which could have accounted for appellant’s net worth increases. First, appellant’s auto electric supply business could have generated undisclosed income. Acceptance of this theory is buttressed by the testimony of appellant’s accountant that the appellant was willing to manipulate his financial statements to achieve a desired result. Record, Vol. IV, at 425-427. Second, the evidence showed that the appellant made profits on several real estate ventures which he failed to report on his tax returns. E. g., Record, Vol. IV, at 428-434. . Appellant suggests various leads and techniques which he contends would have improved the government’s investigation. See Appellant’s Brief, at 10-18. Of course, had these leads been provided during the investigative process the government would have had an obligation to pursue them to the extent that they were" }, { "docid": "10068184", "title": "", "text": "evidentiary rulings. He complains first of all that a summary exhibit prepared by his accountant, which showed $60,000 to $80,000 of nontaxable proceeds from antique sales in each indictment year, was improperly excluded. It is well established that summary exhibits such as net worth schedules, whether offered by the prosecution or the, defense, are admissible for the convenience of the jury in understanding and evaluating evidence independently established in the record; it is equally clear that purported summaries containing assertions not otherwise supported by the record are not admissible. Oertle v. United States, 370 F.2d 719, 727-28 (10th Cir.1966), cert, denied, 387 U.S. 943, 87 S.Ct. 2075, 18 L.Ed.2d 1329 (1967); United States v. Moody, 339 F.2d 161, 162 (6th Cir.1964), cert, denied, 386 U.S. 1003, 87 S.Ct. 1347,18 L.Ed.2d 432 (1967). Here, the prosecution’s net worth schedule was based exclusively on primary evidence which was available to test the accuracy of the summary; the agent who prepared the chart was available for cross-examination concerning disputed items; and the purpose and effect of the chart were made clear to the jury. The prosecution’s net worth summary was therefore admissible. United States v. Lawhon, 499 F.2d 352, 357 (5th Cir.1974), cert, denied, 419 U.S. 1121, 95 S.Ct. 804, 42 L.Ed.2d 820 (1975). By contrast, there was virtually no documentation for the defendant’s alleged antique sales: both the amount of the proceeds and the assumed basis figures were taken not from documents in evidence but from the defendant’s own unsupported speculation. Under the circumstances, the court acted within its discretion in excluding the defendant’s potentially misleading and prejudicial exhibit. See Oertle, 370 F.2d 727-28; United States v. Shavin, 320 F.2d 308, 312 (7th Cir.), cert, denied, 375 U.S. 944, 84 S.Ct. 349, 11 L.Ed.2d 273 (1963); United States v. Kiamie, 258 F.2d 924, 932-33 (2d Cir.), cert, denied, 358 U.S. 909, 79 S.Ct. 236, 3 L.Ed.2d 230 (1958). Defendant also objects to the scope of direct and cross-examination permitted by the district court with respect to the prosecution’s witness Gerald Killion, the revenue agent who prepared the Government’s net worth schedule. On" }, { "docid": "15763161", "title": "", "text": "evidence of appellant’s loans existed. Accordingly, it was necessary for the investigating agent to testify to the non-existence of any documentation. Morse explicitly supports the admission of such testimony: “To be sure, the court must rely on mere assertion when the agent testifies that he could find no evidence of other non-income items, but then, of course, no better evidence would exist.” Id. at 154, n.8. It is not improper for an agent to testify that his investigation failed to uncover sources of nontaxable income. United States v. Penosi, 452 F.2d 217, 219 (5th Cir. 1971). Furthermore, in this case the government introduced the documentary evidence that it had. Specifically, jt introduced five financial statements by the appellant, none of which listed loans from partners as a liability. Appellant also suggests that it was error for the government not to call all of the defendant’s partners as witnesses in order to develop the “loan” theory. Morse does not support “the proposition that the government must introduce those items which it does not believe entitle the taxpayer to a reduction in the alleged understatement of his taxes.” United States v. Lawhon, 499 F.2d 352, 356-357 (5th Cir. 1974), cert. denied, 419 U.S. 1121, 95 S.Ct. 804, 42 L.Ed.2d 820 (1975). The government concluded that the testimony available from the partners would not substantiate the defendant’s loan theory. Appellee’s Brief, at 35. The government is not required to present their case as well as defendant’s rebuttal. The burden of proof was not impermissibly shifted in this case. The government established a prima facie case and the defendant remained silent at his own peril. Holland v. United States, 348 U.S. at 138-139, 75 S.Ct. at 136-137. We find the appellant’s argument regarding the agent’s failure to make use of the grand jury testimony to be without merit. The government proved its case. Accordingly, appellant’s conviction is AFFIRMED. . “The net worth method, it seems, has evolved from the final volley to the first shot in the government’s battle for revenue, and its use in the ordinary income bracket cases greatly increases the chance" }, { "docid": "6870217", "title": "", "text": "chart would have been entitled to admission. Without such evidentiary linkage, it may well be that such a chart is inadmissible as a matter of law. See Oertle v. United States, 370 F.2d 719, 727-728 (10th Cir. 1966), cert, denied, 387 U.S. 943, 87 S.Ct. 2075, 18 L.Ed.2d 1329, 6/5/67; United States v. Moody, 339 F.2d 161, 162 (6th Cir. 1964), cert, denied, 386 U.S. 1003, 87 S.Ct. 1347, 18 L.Ed.2d 432 (1967); United States v. Kiamie, 258 F.2d 924, 932-933 (2d Cir.), cert, denied, 358 U.S. 909, 79 S.Ct. 236, 3 L.Ed.2d 230 (1958). But we need go no farther here than to say that the district court acted within permissible bounds of discretion. Wholly apart from the soundness of the district court’s ruling on admissibility of the net worth exhibit, we see no prejudice to appellant. Admittedly the rejection of appellant’s exhibit gave the prosecution an opening for argument which it vigorously seized and its exhibit had no competition for the jury’s attention in the jury room. Nevertheless it is perfectly clear from the evidence, the argument, and the charge that the key issue in the case was the existence of the cash hoard. Appellant’s expert testified to the effect, in eliminating tax liability, of a much higher starting net worth figure in 1955. Counsel’s argument to the jury centered on the issue of the existence of the cash gift. A substantial part of the court’s instructions was devoted to this issue. And counsel in his brief on appeal states, “In the case at bar, the appellant went to the jury primarily on the accuracy of the opening net worth, contending that he had $300,-000 which the government did not include.” The jury therefore had the issue of the cash gift before them to the extent that their finding against appellant necessarily determined its nonexistence. The excluded chart was not, and could not have been, affirmative evidence of the receipt of the gift. Its relevance, so far as it had any, was simply that it was a graphic means of illustrating how, if appellant had received and retained" }, { "docid": "23276837", "title": "", "text": "the many possible nontaxable sources of income, each of which is as unlikely as it is difficult to disprove. This is not to say that the Government may disregard explanations of the defendant reasonably susceptible of being cheeked. But where relevant leads are not forthcoming, the Government is not required to negate every possible source of nontaxable income, a matter peculiarly within the knowledge of the defendant. Holland, 348 U.S. at 138, 75 S.Ct. 127; cf. United States v. Lawhon, 499 F.2d 352, 356-57 (5th Cir.1974)(explaining that in a case where the government bases its proof on specific items, the “leads doctrine” applicable in circumstantial evidence — or net worth — cases does not apply; in such a case, the government does not bear the burden of trying to discover and exclude all possible non-income items from its evidence of taxable income), cert. denied, 419 U.S. 1121, 95 S.Ct. 804, 42 L.Ed.2d 820 (1975). In this case, the district court correctly instructed the jury that Tarwater had no obligation to present any evidence at all, that he was presumed innocent unless and until the government proved, beyond a reasonable doubt, the elements of the section 7206(1) charges against Tarwa-ter. The court correctly defined those elements and cautioned the jury that government had the burden of proving every element of the crimes charged beyond a reasonable doubt. As suggested in numerous cases, including Ballard, Davis, Orlowski, and Holland, the government was not required to prove the absence of pass-through payments to Davis, particularly where, as here, Tarwater provided the government no help in identifying the form or source of those payments. We accordingly conclude that the district court in no way shifted the burden of proof when it instructed the jury that “the government is not required to prove the non-existence of alleged payments by [Tarwater] to or on behalf of Mr. Davis.” J.A. at 558. The district court correctly stated the law, and there was no violation of Tarwater’s due process rights. B. Tarwater also argues that the district court erred by not giving a good faith instruction and by" }, { "docid": "14226312", "title": "", "text": "of information or data as set forth in the testimony of a witness or in documents that are exhibits in evidence.” The trial judge further pointed out that the charts and summaries were “no better than the books or the testimony upon which they are based, and it is for you to decide whether the charts, schedules or summaries correctly present the data set forth in the testimony and exhibits upon which they are based.” We have examined the charts and summaries objected to and find no basis for the claim of prejudice; their admission was well within the trial judge’s discretion. United States v. Ellenbogen, 365 F.2d 982, 988 (2 Cir. 1966), cert. denied, 386 U.S. 923, 87 S.Ct. 892, 17 L.Ed.2d 795 (1967); Swallow v. United States, 307 F.2d 81, 84 (10 Cir. 1962), cert. denied, 371 U.S. 950, 83 S.Ct. 504, 9 L.Ed.2d 499 (1963) ; United States v. Kelley, 105 F.2d 912, 918 (2 Cir. 1939). Nor was there error in submitting to the jury a chart prepared by the trial judge which specified the counts in which each defendant was named and summarized the witnesses and number of shares of stock to which each count related. United States v. Swan, 396 F.2d 883 (2 Cir. 1968); United States v. Bozza, 365 F.2d 206, 225 (2 Cir. 1966). Tanenbaum’s second point concerns the trial court’s decision to appoint Tanen-baum’s attorney as counsel for another salesman-defendant, Albert Lereh. We have recently expressed disapproval of this practice, Morgan v. United States, 396 F.2d 110 (2 Cir. 1968); but we find it resulted in no prejudice to Tanenbaum in the instant case. Tanenbaum urges we find prejudice on the ground his attorney, while hampered by conflicting obligations to Tanenbaum and to Lerch, could not properly cross-examine a government witness, Erwin Saxl, in a manner best suited to advance Tanenbaum’s defense. He claims his attorney was handicapped because certain aspects of Saxl’s testimony which might exculpate Tanenbaum — that Saxl had dealt with a Biltmore salesman whose name began with “L” — tended to inculpate Lerch. The record, however, does" } ]

[ { "docid": "22336833", "title": "", "text": "Williams v. Owens-Illinois, Inc., 665 F.2d 918, 928-29 (9th Cir.), cert. denied, 459 U.S. 971, 103 S.Ct. 302, 74 L.Ed.2d 283 (1982). By incidental, we mean damages that flow directly from liability to the class as a tohole on the claims forming the basis of the injunctive or declaratory relief. See Fed.R.Civ.P. 23(b)(2) (referring only to relief appropriate “with respect to the class as a whole”). Ideally, incidental damages should be only those to which class members automatically would be entitled once liability to the class (or subclass) as a whole is established. See Manual for Complex Litigation, supra, at 348 (citing Simer v. Rios, 661 F.2d 655 (7th Cir.1981)); see also, e.g., Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439 (N.D.Cal.1994) (defendant’s liability entitled class to a statutorily mandated damage award). That is, the recovery of incidental damages should typically be concomitant with, not merely consequential to, class-wide injunctive or declaratory relief. Moreover, such damages should at least be capable of computation by means of objective standards and not dependent in any significant way on the intangible, subjective differences of each class member’s circumstances. Liability for incidental damages should not require additional hearings to resolve the disparate merits of each individual’s case; it should neither introduce new and substantial legal or factual issues, nor entail complex individualized determinations. Thus, incidental damages will, by definition, be more in the nature of a group remedy, consistent with the forms of relief intended for (b)(2) class actions. Our holding in this respect is not inconsistent with our cases permitting back pay under Title VII in (b)(2) class actions. In Pettway, for example, we noted that Rule 23(b)(2), by its own terms, does not preclude all claims for monetary relief. See 494 F.2d at 257. We construed (b)(2) to permit monetary relief when it was an equitable remedy, and the defendant’s conduct made equitable remedies appropriate. See id. Back pay, of course, had long been recognized as an equitable remedy under Title VII. See Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1125 (5th Cir.1969) (“[a] demand for back pay" } ]

[ { "docid": "836526", "title": "", "text": "“party opposing the class has acted or refused to act on grounds generally applicable to the class” making declaratory or injunctive relief appropriate. Fed.R.Civ.P. 23(b)(2). Plaintiffs seek equitable relief from the defendants’ alleged discrimination, including an order enjoining the defendants from continuing their discriminatory policies and practices. Plaintiffs also seek back pay, front pay and compensatory and punitive damages. The defendants argue that Rule 23(b)(2) certification is inappropriate because injunctive relief is not the primary relief sought in this case. Rule 23(b)(2) certification is appropriate in cases where the plaintiffs seek injunctive relief from racial discrimination by an employer. Paxton, 688 F.2d at 563. Injunctive or declaratory relief must be the predominant relief sought for the class. 7A Wright, Miller & Kane, Federal Practice & Procedure: Civil 2d § 1775, p. 466-67 (1987). However, a request for monetary relief does not preclude Rule 23(b)(2) certification unless the request for monetary relief predominates. Id.; Celestine v. Citgo Petroleum Corp., 165 F.R.D. 463, 468 (W.D.La.1995). The question of whether injunctive or declaratory relief predominates is a matter for the sound discretion of the court. 1 Newberg on Class Actions, § 4.14; 7A Wright, Miller & Kane, Federal Practice & Procedure: Civil 2d, § 1775, p. 470. The fact that back pay is sought as well as injunctive relief does not preclude Rule 23(b)(2) certification. Paxton, 688 F.2d at 563. Because the plaintiffs seek not only back pay but compensatory and punitive damages, the Court concludes that monetary damages are not merely incidental to the requested injunctive relief. See Celestine, 165 F.R.D. at 469. In this case, if a pattern or practice of discrimination is established, the issue of damages will require additional proceedings to determine the scope of individual relief appropriate for the members of the class. Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 876, 104 S.Ct. 2794, 2799-2800, 81 L.Ed.2d 718 (1984). Thus, the issue of damages in this case is separate from the request for injunctive relief. Therefore, the Court concludes that monetary damages are not merely incidental to the requested injunctive relief. This conclusion, however, does" }, { "docid": "23518562", "title": "", "text": "court has discretion to certify a (b)(3) class with*the aggregate amount of statutory damages limited substantially below what a literal application of the statute might seem to require. 1. (b)(2) Issues Rule 23(b)(2) of the Federal Rules of Civil Procedure provides that if the threshold prerequisites of Rule 23(a) are met, a class action may be maintained if the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. Fed.R.Civ.P. 23(b)(2). Although the text of the (b)(2) provision focuses on the appropriateness of injunctive or declaratory relief, the drafters contemplated that a claim for money damages would not necessarily preclude class certification under (b)(2). They cautioned, however, that “[t]he subdivision does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages.” Id. advisory committee’s note (1966) (emphasis added). In a case such as the pending one, in which damages are sought in addition to injunctive and declaratory relief, the (b)(2) certification issue turns largely on whether the final relief relates “predominantly” to money damages. Some courts have ruled that monetary relief predominates “unless it is incidental to requested injunctive or declaratory relief.” Allison v. Citgo Petroleum Corp., 151 F.3d 402, 415 (5th Cir.1998); see also Barabin v. Aramark Corp., No. 02-8057, 2003 WL 355417, at *1-*2 (3d Cir. Jan.24, 2003) (adopting the Allison approach to incidental damages); Jefferson v. Ingersoll International Inc., 195 F.3d 894, 898 (7th Cir.1999) (same). “Incidental” damages have been said to be those “that flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief,” Allison, 151 F.3d at 415, and “should at least be capable of computation by means of objective standards and not dependent in any significant way on the intangible, subjective differences of each class member’s circumstances,” id. As Judge Underhill’s opinion recognizes, however, this Court has rejected the Fifth Circuit’s limitation of (b)(2) to claims for “incidental” damages, see" }, { "docid": "15583329", "title": "", "text": "Cir.1999) (commenting that “domain of Rule 23(b)(1)” is “limited fund that must be distributed ratably,” citing Ortiz v. Fibreboard Corp., 527 U.S. 815, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999)). We discern no allegation of a limited fund that would demonstrate why this type of certification should apply in the instant case. Plaintiffs note that “the prosecution of separate actions will create the risk of varying adjudications with respect to individual dealers” that could “be dispositive of the interests of other GM dealers in the State of Indiana who are not parties to this action or will substantially impair or impede their ability to protect their interests.” Pls.’ Mem. Supp. Mot. Class Cert. at 17. However, “that some plaintiffs may ultimately be successful against a defendant while others may not is simply not a ground for invoking Rule 23(b)(1)(A).” Hurd, 164 F.R.D. at 239 (citations omitted). b. Rule 23(b)(2) Under Rule 23(b)(2), a class may be certified when “the party opposing the class has acted or refused to act on grounds generally applicable to the class,” and the representatives are seeking “final injunctive relief or corresponding declaratory relief.” Fed. R.Civ.P. 23(b)(2); Doe v. Guardian Life Ins. Co. of America, 145 F.R.D. 466, 477 (N.D.Ill. 1992); Charles Alan Wright, Arthur R. Miller & Mary Kay Kane § 1775, at 477. The primary limitation imposed by this subsection is that injunctive or declaratory relief must predominate as the remedy being sought on behalf of the class. See Clay v. American Tobacco Co., 188 F.R.D. 483, 494 (S.D.Ill.1999); Doe, 145 F.R.D. at 477; Wright, Miller & Kane § 1775, at 444-48. The subsection is not fulfilled where the plaintiffs are seeking predominantly money damages. See Clay, 188 F.R.D. at 494; Doe, 145 F.R.D. at 477. Plaintiffs have alleged conduct by General Motors clearly applicable to all members of the class: illegal conversion of one percent of the price of new vehicles, an amount formerly contributed to local advertising funds, for use in its own national marketing efforts. Thus, any obstacle to Plaintiffs’ attempt to certify this class action under Rule 23(b)(2) would come" }, { "docid": "16185596", "title": "", "text": "the violation and the harm among the merchants, this is precisely the type of situation for which the class action device is suited. V. Rule 23(b)(2) Certification Certification under Rule 23(b)(2) is permissible when defendants have acted on grounds generally applicable to the class, making final injunctive or declaratory relief appropriate. Fed.R.Civ.P. 23(b)(2). Certification under Rule 23(b)(2) is not appropriate, however, in “cases in which the appropriate final relief relates exclusively or predominantly to money damages.” Fed.R.Civ.P. 23(b)(2) advisory committee’s notes to 1966 Amendments. The district court found that the putative class is certifiable under Rule 23(b)(2), in addition to Rule 23(b)(3), because “[t]he ‘honor all cards’ rule is ‘generally applicable’ to all members of the class, and the request for an injunction ending it is central to the plaintiffs’ suit.” In re Visa Check/MasterMoney Antitrust Litig., 192 F.R.D. at 88. The court estimated that the injunctive relief requested would have an economic value of $63 billion, which is significant even when compared to the preliminary monetary damage estimate of $8 billion. Id. at 88-89. Defendants contend that the district court abused its discretion by finding that this action is maintainable under Rule 23(b)(2). Specifically, relying on a recent line of cases from other circuits, defendants argue that the money damages in this case predominate because they are not merely incidental to the' in-junctive relief, making class certification under Rule 23(b)(2) inappropriate. See Allison v. Citgo Petroleum Corp., 151 F.3d 402, 415 (5th Cir.1998) (reh’g denied by 1998 U.S.App. LEXIS 24651) (“Monetary relief predominates in (b)(2) class actions unless it is incidental to requested injunc-tive or declaratory relief.”); see also Murray v. Auslander, 244 F.3d 807, 812 (11th Cir.2001) (adopting reasoning of Allison Court); Jefferson v. Ingersoll Int’l Inc., 195 F.3d 894, 898 (7th Cir.1999) (same). Neither the Supreme Court nor this Circuit has delineated the precise circumstances under which a putative class requesting both injunctive and monetary re lief can be certified under Rule 23(b)(2). See Jefferson, 195 F.3d at 897 (“It is an open question ... in the Supreme Court whether Rule 23(b)(2) ever may be used to" }, { "docid": "12906233", "title": "", "text": "23(b)(2) class certification is appropriate where declaratory or injunctive relief is an important aspect of the overall relief sought. See id. at 516. Where plaintiffs seek 23(b)(2) certification as well as monetary relief, class certification under 23(b)(2) is nonetheless appropriate where the injunctive or declaratory relief sought predominates over the monetary relief also sought. See Allison v. Citgo Petroleum Corp., 151 F.3d 402, 411-13 (5th Cir. 1998). Monetary relief predominates when its presence in the litigation suggests that the procedural safeguards of notice and opt-out, as required by 23(b)(3), are necessary— that is, where the monetary relief sought is less of a group remedy and, instead, depends more on varying circumstances and merits of each potential class member’s case. See Allison, 151 F.3d at 413-14. Claims for monetary relief do not predominate where such monetary relief is incidental to the requested injunctive or declaratory relief. See id. at 415. Incidental damages are only those damages to which class members would be automatically entitled once classwide liability is established. See id.; Swanson v. Mid Am, Inc., 186 F.R.D. 665, 669 (M.D.Fla.1999) A defendant’s voluntary cessation of conduct challenged in litigation does not moot the issue of declaratory or injunctive relief. As the Supreme Court noted nearly a half-century ago, “voluntary cessation of the allegedly illegal conduct does not deprive the tribunal of power to hear and determine the controversy, [for otherwise] the defendant is free to return to his old ways, [footnote omitted.] This, together with a public interest in having the legality of the practices settled, mitigates against a mootness conclusion.” United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953). In W.T. Grant Co., the Court pointed out that a case may indeed be mooted if the defendant can carry the “heavy burden” of demonstrating that “there is no reasonable expectation that the wrong will be repeated,” but the mere cessation of the challenged conduct coupled with a disclaimer of an intention to revive it is insufficient. 345 U.S. at 633, 73 S.Ct. 894. The cessation and disclaimer are to be included" }, { "docid": "20416866", "title": "", "text": "declaratory relief is appropriate respecting the class as a whole.” The Eighth Circuit has held that Rule 23(b)(2) certification is appropriate “when plaintiffs seek injunctive relief from the acts of a [defendant] ‘on (the) grounds generally applicable to the class.’” Paxton, 688 F.2d at 563 (quoting U.S. Fidelity & Guar. Co. v. Lord, 585 F.2d 860, 875 (8th Cir.1978)). See also Avritt v. Reliastar Life Ins. Co., 615 F.3d 1023, 1035 (8th Cir.2010) (recognizing the requirement for cohesiveness). In this case, as outlined above, there is no valid dispute that Plaintiffs allege and seek injunctive relief from the acts of Defendant on grounds generally applicable to the class. Plaintiffs allege that Defendant engaged in a systematic practice of sending an illegal notice of cancellation, Defendant collected rewrite fees based upon the illegal practice, and Plaintiffs and the class members were harmed by the practice. Further, apart from Defendant’s arguments addressed above, there is no valid dispute that injunctive and declaratory relief on a class-wide basis is appropriate in this case. Instead, as indicated by the briefing, the real dispute in this case regarding class certification under Rule 23(b)(2) is whether Plaintiffs are predominately seeking monetary damages as opposed to declaratory or injunctive relief. Thus, this Court will only focus on that issue. Notably, as the Eighth Circuit has held, incidental damages may be recovered as a part of a Rule 23(b)(2) class action. See Paxton, 688 F.2d at 563 (holding that incidental damages could be sought as a part of a Rule 23(b)(2) class action); DeBoer, 64 F.3d at 1175. A Rule 23(b)(2) class may, however, not predominately seek money damages. 7A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1775 (3rd ed. 1988) (current through 2010). As stated in Federal Practice and Procedure: A suit predominantly seeking money damages does not qualify under this portion of the rule [Rule 23(b)(2) ]. But, certification under Rule 23(b)(2) may be allowed in actions involving some damages as long as they are incidental, such as back pay claims in employment-discrimination suits seeking to end certain practices of the" }, { "docid": "14916628", "title": "", "text": "generally able to conduct the litigation.” In re Joint E. & S. Dist. Asbestos Litig., 78 F.3d 764, 778 (2d Cir.1996). The court finds that proposed counsel will adequately represent the interests of the class. C. Rule 23(b)(2): Injunctive or Declaratory Relief 1. Law Rule 23(b)(2) permits class certification if “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed.R.Civ.P. 23(b)(2). A class will be certified if “broad, class-wide injunctive or declaratory relief is necessary to redress a group-wide injury.” Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 162 (2d Cir.2001). Subsection (b)(2) has primarily been used in civil rights, institutional, environmental, and law reform cases. See 2 New-berg on Class Actions § 4:11. Since it focuses primarily on injunctive relief, some difficulty may arise in cases where plaintiffs seek both injunctive relief and money damages. Money-damage class actions generally fall under Rule 23(b)(3), which imposes additional notice requirements and opt-out rights, as well as stricter predominance and superiority requirements for the protection of absent class members. “[T]he main focus in determining the applicability of subdivision (b)(2) is whether the injunctive relief that is being sought is deemed to be the primary relief, with money damages being only incidental. A suit predominantly seeking money damages does not qualify under [subdivision (b)(2)].” Wright & Miller § 1775. See also Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 564 (2d Cir.1968) (“Subsection (b)(2) was never intended to cover cases like the instant one where the primary claim is for damages, but is only applicable where the relief sought is exclusively or predominantly injunctive or declaratory.”). But see Visa Check, 192 F.R.D. at 88 (finding antitrust action to be maintainable as a class action under Rule 23(b)(2) notwithstanding a prayer for damages because the request for an injunction ending the collusive practice was central to the suit). In Robinson v. Metro-North Commuter R.R. Co., 267 F.3d at 167, the Court of Appeals for the Second" }, { "docid": "21458816", "title": "", "text": "a class.” Id. at 738 (internal quotation marks omitted). A. Rule 23(a) Rule 23(a) requires initially that the proposed class representatives demonstrate numerosity, commonality, typicality, and adequacy of representation. Fed.R.CivP. 23(a). The district court found that Appellants generally satisfied this burden, see Maldonado, 237 F.R.D. at 148-49, and Ochsner focuses its appeal on Rule 23(b)’s requirements. We will assume arguendo that Appellants meet the Rule 23(a) requirements. See Allison, 151 F.3d at 411 n. 2. B. Rule 23(b)(2) Class certification under Rule 23(b)(2) is appropriate if the requirements of 23(a) are satisfied and: the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. Fed.R.CivP. 23(b)(2). To qualify for class-wide injunctive relief, class members must have been harmed in essentially the same way, and injunctive relief must predominate over monetary damage claims. Bolin v. Sears, Roebuck & Co., 231 F.3d 970, 975 (5th Cir.2000). Additionally, the injunctive relief sought must be specific. Fed. R. Civ. P. 65(d); see also Ala. Nursing Home Ass’n v. Harris, 617 F.2d 385, 387-88 (5th Cir.1980). Appellants cannot satisfy these standards. In addition to monetary damages, Appellants seek an injunction requiring Ochsner, in part, to provide them with “mutually affordable health care” and to cease and desist charging them a higher amount than that charged to insured patients. See Maldonado, 237 F.R.D. at 149-50. They have failed, however, to identify any way to determine what a reasonable or “mutually affordable” rate is for the wide variety of medical services offered by Ochsner. The difficulty in specifying exactly what Appellants seek from an injunction highlights the fact that individualized issues here overwhelm class cohesiveness. See Allison, 151 F.3d at 414. The amount patients were charged and the amount that is “reasonable” for the services they received is necessarily an individual inquiry that will depend on the specific circumstances of each class member, the time frame in which care was provided, and both Ochsner’s and other hospitals’ costs at that time. See" }, { "docid": "21064674", "title": "", "text": "their participation in Bynum and other class action litigation dealing with precisely the same factual, legal, and procedural questions at issue in this case. These class counsel were qualified in Bynum, and are even more so after that experience. See Bynum, 214 F.R.D. at 36-37. C. Rule 23(b) Requirements Once Rule 23(a)’s requirements are met, a putative class must demonstrate that it fits under one of Rule 23(b)’s class types. Plaintiffs seek to certify both the Overdetention Class and the Strip Search Class as “hybrid classes” under both Rule 23(b)(2) and (b)(3). 1. Appropriateness of Equitable Relief To certify a 23(b)(2) class for injunctive or declaratory relief, plaintiffs must demon strate that “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed.R.Civ.P. 23(b)(2). The provision requires “(1) that defendant’s actions are ‘generally applicable to the class’ and (2) that plaintiffs seek final injunctive relief or corresponding declaratory relief on behalf of the class.” Bynum, 214 F.R.D. at 37. In Bynum, the Court noted that it was sufficient to show that a defendant “has acted in a consistent manner toward members of the class so that his actions may be viewed as part of a pattern of activity.” Bynum, 214 F.R.D. at 37 (quoting 7A WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 1775 (2d ed.1986)); see also Jones v. Goord, 190 F.R.D. 103, 112 (S.D.N.Y.1999) (certifying (b)(2) class of prisoners alleging unconstitutional practice of double-celling, “notwithstanding defendants’ argument that matters such as inmate screening is done on a case-by-case basis by different prison officials at different facilities”). In this case, plaintiffs allege systemic failure that results in overdetention, and a system-wide policy of strip searches. Though each violation complained of may have its own unique facts, “the fact remains that, on the facts alleged by plaintiffs, the overdetentions [and strip searches] do not appear to be isolated instances, but instead represent part of a consistent pattern of activity on the part of defendant.”" }, { "docid": "8812345", "title": "", "text": "the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed.R.Civ.P. 23(b)(2). The notes to the rule list a suit “to test the legality of [a] ‘tying’ condition” as among the types of cases suitable for maintenance under Rule 23(b)(2). Id. advisory committee’s note. The “honor all cards” rule is “generally applicable” to all members of the class, and the request for an injunction ending it is central to the plaintiffs’ suit. To be sure, the plaintiffs seek a large damages award as well, but the presence of a damages claim will not defeat maintenance of a class action under Rule 23(b)(2) when “the requested ... injunctive relief is a significant component of the overall relief which plaintiffs seek.” In re Nasdaq Market-Makers Antitrust Litig., 169 F.R.D. 493, 517 (S.D.N.Y.1996). Because the highly significant injunctive relief sought here is as important as the damages claimed, the cases cited by defendants, such as Kaczmarek v. International Business Machines Corp., 186 F.R.D. 307 (S.D.N.Y.1999), are inapposite. In Kaczmarek the court held that 23(b)(2) was unavailable because plaintiffs sought an injunction only “[a]s an aside” in á case in which equitable relief was not even available. Id. at 313. Here, the preliminary damages estimate is approximately $8 billion. By the same methodology, the requested injunction would save the putative class $63 billion over the next decade. The requested injunction is clearly not window dressing. Having found certification appropriate under both Rule 23(b)(2) and (3), I recognize that “major problems can arise” because the procedural consequences vary under the subsections. Chateau de Ville Prods., Inc. v. Tams-Witmark Music Library, Inc., 586 F.2d 962, 966 n. 14 (2d Cir.1978). My inclination at this point is to provide general notice to the class, but to provide opt-out rights only as to the damages action. See 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1775, at 470 (2d ed.1986) (“If the Rule 23(a) prerequisites have been met and injunctive or declaratory relief has been requested, the action usually should" }, { "docid": "15583330", "title": "", "text": "class,” and the representatives are seeking “final injunctive relief or corresponding declaratory relief.” Fed. R.Civ.P. 23(b)(2); Doe v. Guardian Life Ins. Co. of America, 145 F.R.D. 466, 477 (N.D.Ill. 1992); Charles Alan Wright, Arthur R. Miller & Mary Kay Kane § 1775, at 477. The primary limitation imposed by this subsection is that injunctive or declaratory relief must predominate as the remedy being sought on behalf of the class. See Clay v. American Tobacco Co., 188 F.R.D. 483, 494 (S.D.Ill.1999); Doe, 145 F.R.D. at 477; Wright, Miller & Kane § 1775, at 444-48. The subsection is not fulfilled where the plaintiffs are seeking predominantly money damages. See Clay, 188 F.R.D. at 494; Doe, 145 F.R.D. at 477. Plaintiffs have alleged conduct by General Motors clearly applicable to all members of the class: illegal conversion of one percent of the price of new vehicles, an amount formerly contributed to local advertising funds, for use in its own national marketing efforts. Thus, any obstacle to Plaintiffs’ attempt to certify this class action under Rule 23(b)(2) would come from the type of relief they are seeking, that is, whether it is a form of final injunctive or corresponding declaratory relief. To determine whether the relief sought is primarily equitable or money damages, “the plaintiffs’ specific request for relief must be closely scrutinized and consideration must be given to whether the ‘crux of the action is for money damages.’ ” Clay, 188 F.R.D. at 494 (quoting Dhamer v. Bristol-Myers Squibb Co., 183 F.R.D. 520, 528 (N.D.Ill. 1998)). Deciding whether Plaintiffs’ case fits the (b)(2) paradigm presents a close issue because Plaintiffs want to prevent future economic harm and would be entitled to equitable recovery of the amounts paid under an unjust enrichment theory, but they also pursue treble damages on the conversion count and an award of attorney fees as provided for by Indiana statute. In one sense Plaintiffs seek a declaration that the one percent is their money, and relief would seem to flow directly from that proposition. Declaratory relief only “correspond[s]” to final injunctive relief when “as a practical purpose it affords" }, { "docid": "18299225", "title": "", "text": "(2) Inquiry. With little difficulty, the district court concluded that because Plaintiffs’ derivative lawsuit was filed on behalf of the Plan and sought “predominately” equitable remedies, it should be certified as a class pursuant to Rule 23(b)(2). The court did not afford absent class members the option of notice or self-exclusion from the class. Certification of a class under Rule 23(b)(2) is appropriate where “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunc-tive relief or corresponding declaratory relief with respect to the class as a whole.” Fed.R.Civ.P. 23(b)(2). The district court cited this court’s decision in Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir.1998), which held that “monetary relief predominates in (b)(2) class actions unless it is incidental to requested injunctive or declaratory relief.” Id. at 415. This Allison (b)(2) predominance requirement, “by focusing on uniform relief flowing from defendants’ liability, ‘serves essentially the same functions as the procedural safeguards and efficiency and manageability standards mandated in (b)(3) class actions.’ ” In re Monumental Life Ins. Co., 365 F.3d 408, 417 (5th Cir.2004) (quoting Allison, 151 F.3d at 414-15). Allison also imposed standards for determining whether monetary relief sought in a Rule 23(b)(2) class action is truly incidental, or whether such relief is the true pursuit of the class action: Ideally, incidental damages should be only those to which class members automatically would be entitled once liability to the class (or subclass) as a whole is established. That is, the recovery of incidental damages should typically be concomitant with, not merely consequential to, class-wide injunctive or declaratory relief. Moreover, such damages should at least be capable of computation by means of objective standards and not dependent in any significant way on the intangible, subjective differences of each class member’s circumstances. Liability for incidental damages should not require additional hearings to resolve the disparate merits of each individual’s case; it should neither introduce new and substantial legal or factual issues, nor entail complex individualized determinations. Allison, 151 F.Sd at 415 (internal citations omitted). Allison’s test" }, { "docid": "15902577", "title": "", "text": "flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief.... Ideally, incidental damages should be only those to which class members automatically would be entitled once liability to the class (or subclass) as a whole is established .... Liability for incidental damages should not ... entail complex individualized determinations. Thus, incidental damages will, by definition, be more in the nature of a group remedy, consistent with the forms of relief intended for (b)(2) class actions. Murray, 244 F.3d at 812 (quoting Allison v. Citgo Petroleum Corp., 151 F.3d 402, 415 (5th Cir.1998)); see also DWFII Corp. v. State Farm Mut. Auto. Ins. Co., 469 Fed. Appx. 762, 765 (11th Cir.2012). In sum, money damages are “incidental” “only when class members would be automatically entitled to them once class-wide liability is established.” Colomar v. Mercy Hosp., Inc., 242 F.R.D. 671, 682 (S.D.Fla.2007) (internal citation and quotation omitted). Thus, before certifying an injunctive class, a court is left to examine two requirements: “(1) whether [defendant has acted on grounds generally applicable to the class as a whole, and if so, (2) whether declaratory or final injunctive relief is the appropriate and primary remedy.” Id. (citation omitted). As noted, neither party addresses this matter. Notably, Plaintiff has made no effort to demonstrate that the money damages, which appear to be the primary remedy sought, are merely incidental to the injunctive relief. In fact, Plaintiff dedicates a single page of her twenty-eight page motion to asserting that an injunctive class is warranted. Upon the limited record on this matter, the Court respectfully declines to grant this relief. See Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.1995) (“[T]he onus is upon the parties to formulate arguments.”); Phillips v. Hillcrest Med. Ctr., 244 F.3d 790, 800 n. 10 (10th Cir.2001) (“A litigant who fails to press a point by supporting it with pertinent authority, or by showing why it is sound despite a lack of supporting authority or in the face of contrary authority, forfeits the point. The court will" }, { "docid": "14620134", "title": "", "text": "member to be likely, practical, or desirable. Second, the Court is not aware, nor have the parties cited, any other litigation concerning this controversy by other class members. Third, this Court is fully capable of resolving this controversy, and notes that the Florida class is well-aligned with this forum. Finally, the Court does not see any reason that there will be particular manageability problems compared to any other Rule 23(b)(3) class action. The Court rejects Defendant’s contentions that a need for individual analyses regarding knowledge, causation, and damages defeats any claimed superiority in class treatment, for the reasons discussed above. G. Rule 23(b)(2) Rule 23(b)(2) allows for a class action if “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). “Generally applicable” means the party opposing the class “has acted in a consistent manner towards members of the class so that his actions may be viewed as part of a pattern of activity ... [directed] to all members.” Leszczynski, et al. v. Allianz Insurance, 176 F.R.D. 659, 673 (S.D.Fla.1997) (quoting 7A C. Wright, A. Miller, & M. Kane, Federal Practice, section 1775 at 449). Though the predominant relief must be injunctive or declaratory relief, monetary damages may also be sought in a Rule 23(b)(2) class action as incidental relief. Murray v. Auslander, 244 F.3d 807, 812 (11th Cir.2001). “The key to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted.” Dukes, 131 S.Ct. at 2557 (internal quotation marks omitted). Thus, “Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class.” Id. It is the Plaintiffs burden to “affirmatively demonstrate” that class certification is appropriate under Rule 23(b)(2). Id. at 2551. Here, Plaintiff argues that class certification under the 23(b)(2) subdivision is appropriate because she seeks an order from the Court that would require Ford disclose the defect and extend the vehicles’ warranties to" }, { "docid": "10100796", "title": "", "text": "mere seeking of injunctive relief is not enough, however. 23(b)(2) actions are only appropriate where injunctive or declaratory relief is the primary relief sought. “As the case law makes clear, class certification under Rule 23(b)(2) is inappropriate where the final relief sought relates predominately to money damages.” Morris, 175 F.R.D. at 699 (rejecting certification under 23(b)(2) in force placed insurance case); Vaughter v. Eastern Air Lines, Inc., 817 F.2d 685, 690 (11th Cir.1987) (“Certainly, Rule 23(b)(2) was not applicable, as the suit seeks more than just the injunctive and declaratory relief generally available under that provision.”). Although (b)(2) actions may certainly be certified where damages are sought in addition to an injunction, they still may not be certified in a case like the present. In cases where such classes are certified, the “primary relief sought was an injunction.” Charles Alan Wright, Arthur C. Miller & Mary Kay Kane, Fed. Prac. & Proc. § 1760. Here, the treble damages available under RE SPA may more fairly be said to predominate. The primary relief these Plaintiffs seek is money; not an injunction. The Fifth Circuit recently considered the question of predominance in the case of Allison v. Citgo Petroleum Corp., No. 96-30489, 1998 WL 244989, — F.3d — (5th Cir. May 15, 1998), and states persuasively why eases like the present are not appropriate for certification under (b)(2). In Allison, the court stated a rule that “monetary relief predominates in (b)(2) class actions unless it is incidental to requested injunctive or declaratory relief.” Id. at *9,-. “By incidental,” the Fifth Circuit meant “damages that flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief.” Id. In other words, “the recovery of incidental damages should typically be concomitant with, not merely consequential to, the injunctive or declaratory relief,” and “should at least be capable of computation by means of objective standards and not dependent in any significant way on the intangible, subjective differences of each class member’s circumstances.” Id. Incidental damages should not “introduce new and substantial legal or factual issues.”" }, { "docid": "17632949", "title": "", "text": "23(b)(2) only; they do not seek certification alternatively under Rule 23(b)(1) or (b)(3). The Court may certify a claim under Rule 23(b)(2) if the requirements of Rule 23(a) are satisfied and: the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. Fed.R.Civ.P. 23(b)(2). The Court must find that the opposing parties’ conduct or refusal to act was generally applicable to the class and that final injunctive or declaratory relief with respect to the entire class would be the appropriate remedy. Retired Chicago Police Assn., 7 F.3d at 596. “As a general matter, Rule 23(b)(2) is invoked in cases where injunctive or declaratory relief is the primary or exclusive relief sought.” Buycks-Roberson v. Citibank Fed. Sav. Bank, 162 F.R.D. 322, 335 (N.D.Ill.1995). Therefore, “the primary limitation on the use of Rule 23(b)(2) is the requirement that injunctive or declaratory relief be the predominant remedy requested for the class members.” Doe v. Guardian Life Ins. Co. of Am., 145 F.R.D. 466, 477 (N.D.Ill.1992). This subsection does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages. Moore’s Federal Practice II23 App. 04[02]. The dispositive factor that must be assessed in determining whether a class may be certified under Rule 23(b)(2) is the type of relief the plaintiffs actually seek. Dhamer v. Bristol-Myers Squibb, Co., 183 F.R.D. 520, 528 (N.D.Ill.1998). The plaintiffs argue that the “general applicability” requirement of Rule 23(b)(2) is satisfied because the defendants have acted in the same manner with respect to all class members by selling or causing the sale of cigarettes to them while they were minors. The “general applicability” requirement of Rule 23(b)(2) means that “the party opposing the class must have acted in a consistent manner toward members of the class so that [its] actions may be viewed as part of a pattern of activity.” Edmondson v. Simon, 86 F.R.D. 375, 382-83 (N.D.Ill.1980). However, “[a]ll the class members need not be aggrieved by" }, { "docid": "15902576", "title": "", "text": "be obtained in a Rule 23(b)(2) class action so long as the predominant relief sought is injunctive or declaratory.” Murray, 244 F.3d at 812 (citation omitted); see also Dukes, 131 S.Ct. at 2557 (holding that 23(b)(2) certification is not proper where the monetary relief is not incidental to the in-junctive or declaratory relief). Thus, in order to maintain an injunctive class where the relief sought is both monetary and injunctive or declaratory relief, “declaratory or injunc-tive relief must be the predominant remedy requested for the class.” Hammett v. Am. Bankers Ins. Co., 203 F.R.D. 690, 695 (S.D.Fla.2001) (citing Murray, 244 F.3d at 812). If the predominant relief requested is monetary, than the court should not certify the class under Rule 23(b)(2). See id. (citations omitted). “Monetary relief predominates in (b)(2) class actions unless it is incidental to requested injunctive or declaratory relief.” Murray, 244 F.3d at 812 (emphasis added) (internal citation and formatting omitted). The Eleventh Circuit has set forth the criteria to determine whether monetary damages are merely incidental: [Incidental damages are] damages that flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief.... Ideally, incidental damages should be only those to which class members automatically would be entitled once liability to the class (or subclass) as a whole is established .... Liability for incidental damages should not ... entail complex individualized determinations. Thus, incidental damages will, by definition, be more in the nature of a group remedy, consistent with the forms of relief intended for (b)(2) class actions. Murray, 244 F.3d at 812 (quoting Allison v. Citgo Petroleum Corp., 151 F.3d 402, 415 (5th Cir.1998)); see also DWFII Corp. v. State Farm Mut. Auto. Ins. Co., 469 Fed. Appx. 762, 765 (11th Cir.2012). In sum, money damages are “incidental” “only when class members would be automatically entitled to them once class-wide liability is established.” Colomar v. Mercy Hosp., Inc., 242 F.R.D. 671, 682 (S.D.Fla.2007) (internal citation and quotation omitted). Thus, before certifying an injunctive class, a court is left to examine two requirements: “(1) whether [defendant" }, { "docid": "5260803", "title": "", "text": "Defendants are found to have committed actionable misconduct under a claim that would permit monetary damages, class certification under Rule 23(b)(3) for purposes of proving the amount of damages. Pla. Reply at 2. Thus, Plaintiff proposes for the Court to certify this action under Fed.R.Civ.P. 23(b)(2) for declaratory, liability and injunctive purposes, allow the parties to proceed with discovery, and postpone ruling on certification under 23(b)(3) until a determination is made regarding Defendants’ liability vel non and the propriety of declaratory and injunctive relief. The Court will consider Plaintiffs proposal below. 1. Rule 23(b)(2) Class Rule 23(b)(2) certification is warranted when the defendant “has acted or refused to act on grounds generally applicable to the class, thereby making final injunctive or declaratory relief appropriate.” Fed.R.Civ.P. 23(b)(2). It is well-settled that de claratory or injunctive relief must be the predominant remedy requested for the class. Murray v. Auslander, 244 F.3d 807, 812 (11th Cir.2001). Rule 23(b)(2) certification is not warranted where, notwithstanding a request for injunctive or declaratory relief, the predominant relief requested is monetary. Id.; Allison v. Citgo Petroleum Corp., 151 F.3d 402, 411 (5th Cir.1998); Holmes v. Continental Can Co., 706 F.2d 1144, 1155 (11th Cir.1983). “[Rule 23(b)(2) ] does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages.” Advisory Committee Note to 1966 Amendment to Fed.R.Civ.P. 23(b)(2). See also Vaughter v. Eastern Air Lines, Inc., 817 F.2d 685, 690 (11th Cir.1987) (stating “[c]ertainly, Rule 23(b)(2) was not applicable, as the suit [claiming ERISA violations, breach of contract, negligence, unjust enrichment, and conversion] seeks more than just the injunctive and declaratory relief generally available under that provision”). “[M]onetary relief predominates in (b)(2) class actions unless it is incidental to requested injunctive or declaratory relief.” Murray, 244 F.3d at 812 (quoting Allison, 151 F.3d at 415). In Murray, the Eleventh Circuit cited to Allison for the specific criteria to determine whether monetary damages are incidental to equitable relief: By incidental, we mean damages that flow directly from liability to the class as a whole on the claim forming the basis of the" }, { "docid": "12906232", "title": "", "text": "Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 157 n. 13, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982); In re NASDAQ Market-Makers Antitrust Litig., 169 F.R.D. at 512-13; Ross v. A.H. Robins Co., 100 F.R.D. 5, 7 (S.D.N.Y.1982). The requirements of commonality and typicality tend to merge into the adequaey-of-representation requirement. See General Tel. Co. of Southwest, 457 U.S. at 157 n. 13, 102 S.Ct. 2364. To certify a 23(b)(2) class, the named plaintiff not only must satisfy all of the above requirements under 23(a), but he must also satisfy the specific requirements of 23(b)(2): “[T]he party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” An action is proper for certification under 23(b)(2) if the defendants’ policies and conduct affect the entire class. See County of Suffolk v. Long Island Lighting Co., 907 F.2d 1295 (2d Cir.1990); In re NASDAQ Market-Makers Antitrust Litig., 169 F.R.D. at 515-16. Further, 23(b)(2) class certification is appropriate where declaratory or injunctive relief is an important aspect of the overall relief sought. See id. at 516. Where plaintiffs seek 23(b)(2) certification as well as monetary relief, class certification under 23(b)(2) is nonetheless appropriate where the injunctive or declaratory relief sought predominates over the monetary relief also sought. See Allison v. Citgo Petroleum Corp., 151 F.3d 402, 411-13 (5th Cir. 1998). Monetary relief predominates when its presence in the litigation suggests that the procedural safeguards of notice and opt-out, as required by 23(b)(3), are necessary— that is, where the monetary relief sought is less of a group remedy and, instead, depends more on varying circumstances and merits of each potential class member’s case. See Allison, 151 F.3d at 413-14. Claims for monetary relief do not predominate where such monetary relief is incidental to the requested injunctive or declaratory relief. See id. at 415. Incidental damages are only those damages to which class members would be automatically entitled once classwide liability is established. See id.; Swanson v. Mid Am, Inc.," }, { "docid": "19332831", "title": "", "text": "one of the three categories of class suits described in subsection (b). Hudson v. Delta Air Lines, 90 F.3d 451 (11th Cir.1996). The plaintiffs argue that this case is appropriate for certification under Rule 23(b)(2) or 23(b)(3), or both. Actions under 23(b)(2) are appropriate where the party opposing the class has acted on grounds generally applicable to the class and injunctive or declaratory relief is the primary relief sought. In contrast, 23(b)(3) is the section generally invoked if the plaintiffs are seeking predominately money damages, common questions predominate over individual questions, and a class action is superior to other available methods of resolving the controversy. See Taylor v. Flagstar Bank, 181 F.R.D. 509 (M.D.Ala.1998). In this case, the plaintiffs are seeking injunctive relief, declaratory relief, and money damages. 1. RULE 23(b)(2). Rule 23(b)(2) class certification is warranted when “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Plaintiffs contend that Avis has implemented a Yeshiva policy that discriminates against Jewish individuals or Jewish-owned businesses “who have attempted to contract, have contracted, or will in the future contract, with Avis to open an account for use in their business, and who were refused an account, had them account canceled, or were given a less advantageous account” because of their religion or ethnicity. Plaintiffs contend that the Yeshiva policy affected each class member in a manner that violates 42 U.S.C. section 1981, and that Avis has acted on grounds generally applicable to the class. “Generally applicable,” as used in Rule 23(b)(2) has been interpreted to mean that the party opposing the class “has acted in a consistent manner towards members of the class so that his actions may be viewed as part of a pattern of activity, or to establish a regulatory scheme, to all members.” 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 1775 at 449 (2d ed.1986). Applying this interpretation, the court agrees with the" } ]

[ { "docid": "5179325", "title": "", "text": "48, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979); Saline State Bank v. Mahloch, 834 F.2d 690, 692 (8th Cir.1987); In re Camelot Associates Ltd. Partnership, 102 B.R. 161, 164 (Bkrtcy.D.Minn. 1989); In re Prichard Plaza Associates Ltd. Partnership, 84 B.R. 289, 293 (Bkrty. D.Mass 1988). In Westchase I, a North Carolina law controlled. Third, this court held that under North Carolina law, a creditor holding an assignment of rents has no interest in rents and profits of the real estate so long as the mortgagor remains in possession and no receiver has been appointed. The court further held that the creditors’ commencement of foreclosure proceedings alone, without obtaining possession of the property or appointment of receiver, was not sufficient to perfect the security interest in rents. Fourth, this Court held that because the creditor in Westchase I which held the rent assignment was not in possession of the real estate at the time the Chapter 11 case was filed, and because no receiver had been appointed at the time the Chapter 11 case was filed, the creditor held no interest in rents and profits, and such rents and profits arising from the real estate did not constitute cash collateral as defined in § 363 of the Bankruptcy Code. Boston Company argues that West-chase I is wrongly decided. This court is not prepared to reverse its Westchase I decision. In this case, it is undisputed that Debtor Forest Ridge was in possession of its real estate and was in possession of its rents, at the time this Chapter 11 case was filed. Boston Company had not obtained the appointment of a receiver, and had not even commenced an action seeking appointment of a receiver. No notice to tenants had been sent directing tenants to pay rent directly to Boston Company. At the time the case was filed, Boston Company had not commenced any foreclosure action. North Carolina law controls because the property is located in North Carolina and the documents specifically elect application of North Carolina law. For the reasons set forth above and in Westchase I, Boston Company has no" } ]

[ { "docid": "1100030", "title": "", "text": "former Bankruptcy Act, its holding has been extended to determine a mortgagee’s interest- in rents under the current Bankruptcy Code. See Barnhill v. Johnson, — U.S. -, -, 112 S.Ct. 1386, 1389, 118 L.Ed.2d 39 (1992). . Several later cases interpreting Massachusetts law have relaxed the actual possession requirement for enforcement of a right to collect rents, although they still require some overt act. Collectively, those cases demonstrate that the question of what action is required under Massachusetts law to entitle a mortgagee to collect rents post-petition has not yet been conclusively decided. See e.g., In re Ashford Apartments Limited Partnership, 132 B.R. 217, 219 (Bankr.D.Mass.1991) (\"a mortgagee who enters the property and gives notice of that fact to tenants prior to the filing of that petition under the Bankruptcy Code has done all that is required to obtain an interest in rents entitled to protection under Sec. 363.’’); In re Milford Common J. V. Trust, 117 B.R. 15 (Bankr.D.Mass.1990) (Massachusetts law requires an overt act by the assign-ee to take actual or constructive possession for it to be entitled to the rents); In re Cantonwood Associates Ltd. Partnership, 138 B.R. 648, 659 (Bankr.D.Mass.1992) (filing a certificate of entry, giving notice to tenants and commencing suit for possession is sufficient); In re Concord Mill Ltd., 136 B.R. 896, 901 (Bankr.D.Mass.1992) (an attempt to take possession, although frustrated by the borrower, and notice to tenants is adequate). . An analysis of Massachusetts law governing the actual enforcement of a right to collect rents, would be relevant only if a secured creditor had not yet enforced his rights and the bankruptcy court deemed it necessary, in order to provide adequate protection to the mortgagee, to declare the mortgagee entitled to collect the rents. As at least one Bankruptcy Court has held, \"the bankruptcy court’s powers are sufficiently broad to allow it to enforce a mortgagee’s security interest in rents when and to the extent a state court would do so.” Dash Point, 121 B.R. at 860. That situation is not present here. . The holding and reasoning in Wynnewood, 121 B.R. 716," }, { "docid": "18493848", "title": "", "text": "to M.G.L. ch. 244, § 2, certifying that it made open, peaceable and unopposed entry. Travelers also states that it gave notice to each of the tenants that rents should be paid to Travelers. The Debtor characterizes Travelers’ actions as an “attempted entry” and as trespassing. However, it acknowledges that Travelers sent letters to the tenants directing them to make future payments to Travelers and that Travelers initiated a lawsuit in the state court. Recent decisions in this jurisdiction unequivocally support the conclusion that Travelers has a perfected security interest in the rents generated by the Cantonwood property. Compare In re Milford Common J.V. Trust, 117 B.R. 15 (Bankr.D.Mass.1990) (Massachusetts law requires an overt act by the assignee to take actual or constructive possession for it to be entitled to the rents); In re Ashford Apartments Limited Partnership, 132 B.R. 217, 219 (Bankr.D.Mass.1991) (“a mortgagee who enters the property and gives notice of that fact to tenants prior to the filing of that petition under the Bankruptcy Code has done all that is required to obtain an interest in rents entitled to protection under Sec. 363.”); In re Concord Mill Limited Partnership, 136 B.R. 896 (Bankr.D.Mass.1992) (a security interest in rents is perfected when the assignee at least makes entry and gives notice to tenants that rents are to be paid to the assignee, and, if the assignor refuses to cooperate and cede possession, the assignee's possession need not be peaceable and exclusive) with In re Prichard Plaza Associates Limited Partnership, 84 B.R. 289 (Bankr.D.Mass.1988) (perfection of an interest in rents under a collateral assignment of leases requires peaceable and exclusive possession); In re Ledgemere Land Corp., 116 B.R. 338 (Bankr.D.Mass.1990) (same). Cf. In re Somero, 122 B.R. 634, 638-39 (Bankr.D.Me.1991) (security interest in rents and profits is an agreement perfected under Maine law by a recording in the registry of deeds where the mortgage on the real property from which the rents are derived would be recorded); In re Rancourt, 123 B.R. 143, 148 (Bankr.D.N.H.1991) (post-petition rents subject to 'an assignment of rents and mortgage are cash collateral even" }, { "docid": "8351044", "title": "", "text": "not entitled to outright possession of the property or to its rentals or profits until the lien is enforced. Taylor v. Brennan, 621 S.W.2d 592, 593 (Tex.1981). Rentals may be separately assigned as collateral to the mortgagee either within the deed of trust or in a separate agreement. Id. at 593-594. In the instant case, it is undisputed that the rent assignment constitutes a pledge to secure a debt and as such creates a security interest in the rents. The Texas Supreme Court in Taylor followed the common law rule that an assignment or pledge of rents does not become “operative” until the mortgagee obtains possession of the property, impounds the rents, secures the appointment of a receiver or takes some similar action. Id. at 594. The Fifth Circuit has applied Taylor to determine whether a mortgagee has an interest in rents post-petition. In re Casbeer v. State Federal Savings & Loan Ass’n. (In re Casbeer), 793 F.2d 1436 (5th Cir.1986); Matter of Village Properties, Ltd., 723 F.2d 441 (5th Cir.1984); see also In re Lake Austin Centre Joint Venture, 106 B.R. 106, 108 (Bankr.W.D.Tex.1989). According to the Fifth Circuit, bankruptcy’s automatic stay precludes a creditor from taking the Taylor v. Brennan “perfection” steps, i.e., entering the premises to obtain possession. The court adds in dicta that post-petition “perfection” of an interest in rents can be accomplished by the creditor’s filing a notice of perfection under Section 546(b). Casbeer, 793 F.2d at 1443. The notion of a post-petition “perfection” of an interest in rents has been soundly criticized recently. See National Real Estate Ltd. Partnership-II v. Consolidated Capital Properties (In re National Real Estate Ltd. Partnership-II), 104 B.R. 968, 970-971 (Bankr.E.D.Wis.1989) (construing Texas law); Conti, Distinguishing Perfection from Enforcement Assignment of Rents: There’s Hope for Secured Creditors, 3 Bankr.Couns. ¶ 933 (October 22, 1990); Averch, Revisitation of the Fifth Circuit Opinions of Village Properties and Casbeer: Is Post-Petition “Perfection ” of an Assignment of Rents Necessary to Characterize Rental Income as Cash Collateral?, 93 Com.LJ. 516 (1988). These authorities point out that the language and meaning of the term “operative”" }, { "docid": "1117104", "title": "", "text": "Coventry Commons Assocs., 134 B.R. 606 (Bankr.E.D.Mich.1991). In that opinion, this Court held that Travelers had a perfected security interest in future rents which would be received from the time that all requirements of the assignment of rents statute were met until the period of redemption on the foreclosure would expire, or until the property would be redeemed. The Court further held that Travelers was entitled to adequate protection of that interest under § 363(e) of the Code, and that requiring the debtor to use the present rents to preserve the property was the best way to protect Travelers’ interest in the future rents. On appeal, the District Court held that Travelers does have a valid, binding perfected security interest in the present rents. The court added: As Travelers has a perfected present security interest in the rents, such rents must be treated as cash collateral as required under 11 U.S.C. §§ 363(a) and 552(b). The rents are cash collateral because both the bankruptcy estate and Travelers have an interest in the rents and the rents are subject to a security agreement as provided by § 552(b). See In re Bethesda Air Rights Ltd. Partnership, 117 B.R. 202, 209-10 (Bankr.D.Md. 1990) (where rents are treated as security, rents collected post-petition are cash collateral, even where creditor had perfected its interest in the rents pre-petition and had satisfied state law requirements to enforce assignment of -rents.). As the rents are cash collateral, the debtor, here Coventry, may not use such rents without first gaining the approval of the bankruptcy court. This is because, under Bankruptcy Code, Travelers, as a party holding an interest in the rents, is entitled to require that its interest in the rents is adequately protected. 11 U.S.C. §§ 363(c)(2)(B) & (e). In re Coventry Commons Assocs., 143 B.R. 837, 839 (E.D.Mich.1992). The District Court went on to hold that this Court had not specifically ruled on the issue of whether Travelers’ interest in the rents as cash collateral was being adequately protected, and therefore that specific issue was remanded to this Court. Upon remand, this Court concluded" }, { "docid": "18493849", "title": "", "text": "obtain an interest in rents entitled to protection under Sec. 363.”); In re Concord Mill Limited Partnership, 136 B.R. 896 (Bankr.D.Mass.1992) (a security interest in rents is perfected when the assignee at least makes entry and gives notice to tenants that rents are to be paid to the assignee, and, if the assignor refuses to cooperate and cede possession, the assignee's possession need not be peaceable and exclusive) with In re Prichard Plaza Associates Limited Partnership, 84 B.R. 289 (Bankr.D.Mass.1988) (perfection of an interest in rents under a collateral assignment of leases requires peaceable and exclusive possession); In re Ledgemere Land Corp., 116 B.R. 338 (Bankr.D.Mass.1990) (same). Cf. In re Somero, 122 B.R. 634, 638-39 (Bankr.D.Me.1991) (security interest in rents and profits is an agreement perfected under Maine law by a recording in the registry of deeds where the mortgage on the real property from which the rents are derived would be recorded); In re Rancourt, 123 B.R. 143, 148 (Bankr.D.N.H.1991) (post-petition rents subject to 'an assignment of rents and mortgage are cash collateral even where mortgagee was not in possession or had obtained the appointment of a receiver). Thus, this Court holds that, with respect to all pre-petition leases and the rental proceeds attributable to them, Travelers has a perfected security interest in rental income from the Cantonwood property and such rental income is cash collateral pursuant to 11 U.S.C. §§ 363(a) and 552(b). In a Supplemental Memorandum of Law in Support of Application for Compensation and Reimbursement of Expenses, the Debt- or raises an issue as to whether Travelers’ perfected security interest extends to post-petition rental income from new leases entered into post-petition. Citing In re Cross Baking Co., 818 F.2d 1027 (1st Cir.1987), the Debtor argues that, although Travelers’ security interest may extend to the proceeds of pre-petition leases, it does not extend to post-filing leases, which it describes as after acquired property not itself proceeds of pre-petition property. The Court lacks the benefit of Travelers’ legal arguments on this point, as well as specific information as to the number of post-petition leases and the dollar amount" }, { "docid": "11422546", "title": "", "text": "perfected assignment of rents. Some states hold that upon default the assignment of rents grants the creditor an absolute right to the rents without requiring further action. In re Aloma Square, Inc., 85 B.R. 623 (Bankr.M.D.Fla.1988). Other states hold that a creditor’s right to rents becomes effective when the creditor takes some action to perfect its interest in the rents. In re Fluge, 57 B.R. 451 (Bankr. N.D.1985). A creditor’s action was held to be equivalent to possession when, after default, the creditor established an office at the shopping center, collected rents from the tenants, and paid the shopping center’s expenses. Pine Lawn Bank & Trust Co. v. MH & H, Inc., 607 S.W.2d 696 (Mo.App. 1980). Finally, some states hold that a creditor must take actual possession or obtain appointment of a receiver to enforce its security interest in rents. See Matter of Gotta, 47 B.R. 198 (Bankr.D.Wis.1985). In re Centre of Missouri Limited, 116 B.R. 138, 141 (Bankr.E.D.Mo.1990) a recent case construing Missouri law, which is similar to Kansas law, holds that a mortgagee is entitled to rents upon default if (a) the parties agree; (b) the mortgagee enters into possession of the property; or (c) the mortgagee takes some equivalent action tantamount to possession. These cases serve as an illustration of the varying ways creditors can enforce a security interest in rents under various states’ laws. Determination of Travelers’ rights in the present case is controlled by Kansas law. See Butner v. United States, 440 U.S. 48, 57, 99 S.Ct. 914, 919, 59 L.Ed.2d 136 (1979). Kansas is a lien theory state. Kan.Stat. Ann. § 58-2301 (1983); Missouri Valley Investment Co. v. Curtis, 12 Kan.App.2d 386, 745 P.2d 683, 685 (1987). In a lien theory state, the mortgage does not vest the mortgagee with title to the mortgaged property, but instead, gives the mortgagee only “a lien securing the indebtedness described in the [mortgage].” Hall v. Goldsworthy, 136 Kan. 247, 14 P.2d 659, 660 (1932); Mid-Continent Supply Co. v. Hauser, 176 Kan. 9, 15, 269 P.2d 453 (1954). Similarly, under Kansas law, an assignment of rents creates" }, { "docid": "18604467", "title": "", "text": "Cir.1986). Indeed, the reference in section 552(b) to the underlying security instrument and applicable nonbankruptcy law appears to codify the Butner holding insofar as postpetition rents are concerned. Accord In re TM Carlton House Partners, Ltd., 91 B.R. 349, 352-53 (Bankr.E.D.Pa.1988). Therefore, to determine Heller’s interest in the debtor’s postpetition rents, I must begin with an analysis of Pennsylvania law on the right of a mortgagee to receive rents from real estate. III. Pennsylvania law regarding the interests of a mortgagee in rents stems from its common law. Simplified slightly, as a “title” jurisdiction, Pennsylvania decisions generally proclaim that a mortgagee, (whether its security agreement has a rents assignment provision or not), has the right to seek possession of the realty in certain circumstances (i.e. default) and in prescribed ways. See Bulger v. Wilderman and Fleet, 101 Pa.Super. 168, 172 (1931). Until the mortgagee obtains possession, the mortgagor is generally entitled to receive all rents from the realty. See Colbassani v. Society of Christopher Columbus, 159 Pa.Super. 414, 48 A.2d 106, 107 (1946); Miners Sav. Bank v. Thomas, 140 Pa.Super. 5, 12 A.2d 810 (1940). See generally, Comment, The Mortgagee’s Right to Rents After Default, 50 Yale L.Rev. 1424 (1941) (“Comment”). In other words, Pennsylvania is not among those states that consider a collateral assignment of future rents to be both effective and enforceable at the time of the recordation of the rent assignment. See Fogarty v. Shamokin & Mount Carmel Transit Co, 367 Pa. 447, 80 A.2d 727 (1951); Bulger; Comment. Compare, e.g., United States v. Landmark Park & Assocs., 795 F.2d 683 (8th Cir.1986) (rent assignments are perfected and enforceable upon recordation under federal common law); In re BVT Chestnut Hill Apartments, Ltd., 115 B.R. 116 (Bankr.M.D.Tenn.1990) (state law was amended to make collateral rent assignments perfected and enforceable upon proper recordation); In re Winslow Center Associates, 50 B.R. 679 (Bankr.E.D.Pa.1985) (New Jersey law permits certain rent assignments to be perfected and enforceable upon recordation). The right of a mortgagor to receive rents is altered once the mortgagee obtains possession. Whether or not the security agreement contains a" }, { "docid": "11712712", "title": "", "text": "Michigan law allows a mortgagee to exercise its entitlement to collect rents without requiring the mortgagee to first take possession of the mortgaged premises or that a receiver be appointed. Security Trust Co. v. Sloman, 252 Mich. 266, 233 N.W. 216 (1930). An assignment of rents is “not merely an incident to the right of the possession of land, but is a distinct remedy and additional security.” Id. at 273, 233 N.W. 216. The right of the mortgagee to collect rents ceases at the expiration of the period of redemption if the premises are not redeemed. Id. at 274, 233 N.W. 216. However, the mortgagor’s right of redemption is an interest in the future rents and not an interest in the present rents when the Mortgage is in default. In re Mount Pleasant, 144 B.R. at 737. Thus, the mortgagor no longer has any interest in the present rents once a default has occurred. Otis Elevator Co. v. Mid-America Realty Investors, 206 Mich.App. 710, 522 N.W.2d 732 (1994) (creditor could not garnish mortgagor’s interest in rents after mortgagor defaulted under the terms of its mortgage). Otis Elevator, a case recently decided by the Court of Appeals of Michigan, cited with approval two federal bankruptcy court cases, In re Mount Pleasant Ltd. Partnership, 144 B.R. 727, 733-34 (Bankr.W.D.Mich.1992), and In re Coventry Commons Associates, 143 B.R. 837, 838 (E.D.Mich.1992), which cases interpreted Michigan law for this very issue — ownership of rents in a single asset case. Id. 206 Mich.App. at 713-14, 522 N.W.2d 732. In Coventry Commons, the mortgagee recorded the assignment of rents but failed to record a notice of default and did not send copies of such notice to the tenants. In re Coventry Commons, 143 B.R. at 838. The district court held that the mortgagee had a perfected security interest and, as such, the rents constituted cash collateral. Id. at 839. In a situation more analogous to the present case, the court in Mount Pleasant held that once a mortgagee completed all the necessary five-steps for complete enforcement, the debtor lost any interest in the rents under" }, { "docid": "16288212", "title": "", "text": "Accordingly, we hold that the rents are not the property of the bankruptcy estate. A. Title to the Rents The bank argues that it took the necessary and appropriate steps to obtain legal title to the rents, thereby extinguishing the debtor’s interest in the funds. The bank relies on Commerce Bank v. Mountain View Village, Inc., 5 F.3d 34 (3d Cir.1993). In that case, we considered the ownership of assigned rents in bankruptcy under Pennsylvania law. After the owner of rental properties defaulted on a mortgage, the mortgagee, who held a mortgage containing an assignment of rents provision, obtained constructive possession of the properties by sending notice to the tenants and collecting the rents. The owner then filed for Chapter 11 protection and sought use of the rents. We held that the mortgagee obtained title to the rents by taking the steps that it did, and as a result, the rents were not the property of the debtor’s estate available for use in its reorganization plan. Id. at 38. The facts in this case are similar to those in Commerce Bank. The bank held mortgages containing provisions assigning the rents in the event of default. The owners did default, and the bank sent notice to the tenants informing them that it would be collecting their rents. In doing so, the bank enforced its rights under the mortgage, and obtained constructive possession of the properties and title to the rents. See id. at 39; see also Robin Assocs. v. Metro. Bank & Trust Co. (In re Robin Assocs.), 275 B.R. 218, 221 (Bankr.W.D.Pa.2001) (explaining that “under Pennsylvania law, a mortgagee ... obtains ownership of assigned rents from the moment that notice is served by the mortgagee to a mortgagor’s tenants to commence making rental payments to the mortgagee”); J.H. Streiker & Co. v. SeSide Co. (In re SeSide Co.), 152 B.R. 878, 883 (E.D.Pa.1993) (citations omitted) (“The right of a mortgagee to receive rents, even when the mortgage contains an assignment provision, is grounded on ‘possession’ of the underlying realty. A mortgagee can obtain ‘possession’ of realty and consequently obtain a" }, { "docid": "11712713", "title": "", "text": "rents after mortgagor defaulted under the terms of its mortgage). Otis Elevator, a case recently decided by the Court of Appeals of Michigan, cited with approval two federal bankruptcy court cases, In re Mount Pleasant Ltd. Partnership, 144 B.R. 727, 733-34 (Bankr.W.D.Mich.1992), and In re Coventry Commons Associates, 143 B.R. 837, 838 (E.D.Mich.1992), which cases interpreted Michigan law for this very issue — ownership of rents in a single asset case. Id. 206 Mich.App. at 713-14, 522 N.W.2d 732. In Coventry Commons, the mortgagee recorded the assignment of rents but failed to record a notice of default and did not send copies of such notice to the tenants. In re Coventry Commons, 143 B.R. at 838. The district court held that the mortgagee had a perfected security interest and, as such, the rents constituted cash collateral. Id. at 839. In a situation more analogous to the present case, the court in Mount Pleasant held that once a mortgagee completed all the necessary five-steps for complete enforcement, the debtor lost any interest in the rents under state law. In re Mount Pleasant Ltd., Partnership, 144 B.R. at 737. Similarly, since Connecticut Mutual had taken all the necessary steps for complete enforcement of its Assignment of Rents, the Debtor has lost its interest in the Rents. This Court remains unconvinced that Whiting Pools mandates a different outcome. The debtor in Mount Pleasant also unsuccessfully made, the same argument. Id. This court is persuaded that Whiting Pools is inapplicable because the Debtor no longer has any interest in the Rents. Whiting Pools only applies when ownership of the seized property has not been transferred. Whiting Pools, 462 U.S. 198, 209, 103 S.Ct. 2309, 2316 (“of course, if a tax levy or seizure transfers ... ownership of the property seized, section 542(a) may not apply.... But those provisions do not transfer ownership of the property_”). Michigan law transfers ownership of the Rents to the mortgagee until the Mortgage is satisfied. The equitable interest the Debtor alludes to as property of the estate was correctly characterized by the Mount Pleasant court as an equitable interest" }, { "docid": "4746715", "title": "", "text": "Kenner) with In re Prichard Plaza Associates L.P., supra, and In re Ledgemere Land Corp., 116 B.R. 338 (Bankr.D.Mass.1990) (both Chief Judge Queenan). The Court feels that it must make a broader search for the controlling rule. The parties agree that there is little assistance to be found in New Hampshire case law. In Cavis v. McClary, 6 Grafton 67, 5 N.H. 529 (1831), the court had to determine which of two mortgagees was entitled to the rents of the mortgagor’s tenant. The court held that the second mortgagee was so entitled because it had entered and given notice. The Cavis Court used Massachusetts case law for support. The rule in Cavis appears to conform to what all of the Massachusetts bankruptcy judges have held — that something beyond the mere taking of an assignment of rents is required before they rise to the dignity of cash collateral. It is only in the magnitude of the required acts that my colleagues differ. UNUM takes a broader stance and argues that, when looking at state law, the Court must distinguish between the concepts of creation, perfection, and enforcement of a security interest. UNUM contends that the recording of an assignment of rents is all that is required under New Hampshire law to obtain a perfected interest in rents. It argues that the cases in that state referring to a mortgagee taking possession relate to the enforcement of the interest and not the perfection. Various courts support this contention. See In re Somero, 122 B.R. 634 (Bankr.D.Me.1991). The Court, however, does not agree. The language of the assignment of rents is nominally an absolute assignment of rents with a license-back to the mortgagor to collect and enjoy them “until a default has occurred, and has continued beyond any applicable grace period....” If the assignment were indeed absolute, the as-signee/mortgagee would have a right to rents without any further action on its part. Great West Life Assurance Co. v. Rothman (In re Ventura-Louise Properties), 490 F.2d 1141, 1145 (9th Cir.1974). The Court concludes that the assignment creates the functional equivalent of an equitable" }, { "docid": "13665404", "title": "", "text": "does nothing more than place the rents in the custody of the court until the rights of the parties have been determined. The appointment of a receiver merely denies the mortgagor-assignor the use of the rents pendente lite. But, the debtor’s ownership rights in the property, and in the rents stemming therefrom, are not altered by the appointment of a receiver. See Willows of Coventry, 154 B.R. at 962-63; Blech, 32 Ill.App.2d at 274, 177 N.E.2d at 650; Levin, 255 Ill.App. at 66. In this case, the assignment of rents merely provided Mass Mutual with the right to collect rents from the Property, but did not convey title to those rents. Nor did the appointment of the Receiver effect a conveyance of title to Mass Mutual. Rather, the appointment of the Receiver “did nothing more than deprive debtor its statutory right to possession of the property, ... its ownership interest continued.” Willows of Coventry, 154 B.R. at 962-63 (citations omitted). As the Bankruptcy Court for the District of Columbia stated in In re 5028 Wisconsin Ave. Associates Ltd. Partnership: Steps taken to make choate what is otherwise an inchoate security interest in rents do not alter the character of the mortgagee’s rights in the rents as security for payment of a debt. What such steps do accomplish is to allow the mortgagee to enforce the security interest and to give the mortgagee priority over subsequent judgment lien creditors in the tenants’ fu ture rental payments. The mortgagee’s choate security interest in rents remains a security interest (albeit one with priority), not absolute ownership. 167 B.R. 699, 705 n. 8 (Bankr.D.C.1994). 4. Statutory Construction The plain language of the Bankruptcy Code supports the conclusion that the Debt- or’s ownership rights in the assigned rents were not extinguished. Section 552(b) provides: Except as provided in sections 363, 506(c), 522, 544, 545, 547, and 548 of this title, if the debtor and an entity entered into a security agreement before the commencement of the case and if the security interest created by such security agreement extends to property of the debtor acquired before" }, { "docid": "1100029", "title": "", "text": "of the litigation. So ordered. . No verified evidence has been introduced regarding the net rents generated by the Property. Moreover, rents from this property have been deposited, along with rents from other properties controlled by the Debtor, into a single, consolidated debtor-in-possession account. . The Note, the Mortgage and the Collateral Assignment will hereinafter be referred to collectively as the \"Mortgage Documents”. . In Section 203 of Senate Bill No. 1985 (part of the Omnibus Bankruptcy Reform Act not yet enacted, S. 1985 102d Cong., 2d Sess. (1992)), Congress sought to amend Section 363(a) of the Code. According to academic commentary, \"[t]he intent of the proposed amendment appears to be that all assignments of rent properly recorded pre-petition would be deemed to be perfected as of the filing of the petition and the rents thereby treated as cash collateral.” Donahue & Edwards, The Treatment of Assignments of Rents in Bankruptcy: Emerging Issues Relating to Perfection, Cash Collateral, and Plan Confirmation, 48 Bus.Law 633, 652-53 (1993) (hereinafter \"Donahue”). . Although Butner was decided under the former Bankruptcy Act, its holding has been extended to determine a mortgagee’s interest- in rents under the current Bankruptcy Code. See Barnhill v. Johnson, — U.S. -, -, 112 S.Ct. 1386, 1389, 118 L.Ed.2d 39 (1992). . Several later cases interpreting Massachusetts law have relaxed the actual possession requirement for enforcement of a right to collect rents, although they still require some overt act. Collectively, those cases demonstrate that the question of what action is required under Massachusetts law to entitle a mortgagee to collect rents post-petition has not yet been conclusively decided. See e.g., In re Ashford Apartments Limited Partnership, 132 B.R. 217, 219 (Bankr.D.Mass.1991) (\"a mortgagee who enters the property and gives notice of that fact to tenants prior to the filing of that petition under the Bankruptcy Code has done all that is required to obtain an interest in rents entitled to protection under Sec. 363.’’); In re Milford Common J. V. Trust, 117 B.R. 15 (Bankr.D.Mass.1990) (Massachusetts law requires an overt act by the assign-ee to take actual or constructive possession" }, { "docid": "6443285", "title": "", "text": "The second, In re Johnson, 62 B.R. 24 (9th Cir.BAP 1986), provides some guidance and will be discussed in further detail below. Traveler’s has asked the Court to determine that it has a valid and perfected assignment of rents. Such a determination would permit Traveler’s to collect the rents and would transform them into cash collateral pursuant to § 363 of the Code. 11 U.S.C. § 363. In support, Traveler’s argues that it holds an absolute or perfected assignment of rents and is entitled to collect them without taking any additional steps. Traveler’s contends that pursuant to the documentation of the loan, the debt- or merely has a license to collect rents, and that the license was revoked on default. On the other hand, the debtor argues that Traveler’s has nothing more than an inchoate lien on the rents which can only be perfected under State law by the mortgagee (Traveler’s) taking possession of the building or by the appointment of a receiver. The debtor further contends that as a result, Traveler’s does not have a perfected interest in the rents, and therefore the rents are not cash collateral. If it is determined that Traveler’s has an absolute assignment, the ruling will be dis-positive of the issue of entitlement to rents. If, however, the Court concludes that Traveler’s only has an inchoate lien, a secondary issue must then be resolved, that is what steps, if any, may be taken to perfect the lien after filing? In the Ninth Circuit, there are two cases which hold an assignment of rents to be absolute, and one which holds that an assignment of rents creates only an inchoate lien. In In re Ventura-Louise Properties, 490 F.2d 1141 (9th Cir.1974), the Court held that under California law, where the lender had the right to collect rents upon default, the assignment was absolute and no further action was required by the creditor. Under California law, parties to a mortgage may contract as to the right to rents and any such contract is to be enforced according to the intentions of the parties. Kinnison v. Guaranty" }, { "docid": "18588157", "title": "", "text": "exceeding $8,000,000. A. Prudential’s Interest in Rents The Debtor has a substantial cash balance. It has not, however, segregated these funds as to the properties from which they are derived. Thus there is a tracing problem, even if one assumes Prudential has an enforceable interest in the rents. There are other more basic deficiencies to Prudential’s claim to the collected rents. Prior to Prudential taking possession of the property, its assignment of rents gave it only an inchoate security interest in the rents under Massachusetts law. In re Prichard Plaza Assoc., Ltd. Partnership, 84 B.R. 289 (Bankr.D.Mass.1988). That inchoate interest does not defeat the Debtor’s right to collect and retain the rents. Id. Although the bankruptcy judges of this district have taken different views on what type of possession makes the interest choate, we are uniform in holding some form of possession is required. See In re Cantonwood Assoc., Ltd. Partnership, 138 B.R. 648 (Bankr.D.Mass.1992) (peaceable entry only upon land, filing of certificate of entry and notice to tenants sufficient); In re Ashford Apartments Ltd. Partnership, 132 B.R. 217 (Bankr.D.Mass.1991) (same); In re Ledgemere Land Corp., 116 B.R. 338 (Bankr.D.Mass. 1990) (actual control of premises required); In re Milford Common J.V. Trust, 117 B.R. 15 (Bankr.D.Mass.1990) (actual or constructive possession required). Under any of these views, Prudential’s possession commenced no earlier than January 25th. The Debtor collected no rents thereafter. The subject of security interests in rents is a tangled web, even beyond questions relating to possession. Some courts require no possession at all. There appears to be no decision, however, which gives retroactive effect to whatever action is required to change the mortgagee’s interest from inchoate to choate. Even courts that regard a postpetition sequestration motion as a sufficient triggering event to bring about a choate interest do not go that far. They make the motion effective only with respect to rents due thereafter. See, e.g., In re Vienna Park Properties, 976 F.2d 106 (2d Cir.1992); Casbeer v. State Federal Savings & Loan Ass’n (In re Casbeer), 793 F.2d 1436, 1443 (5th Cir.1986). B. Plan’s Failure to Require Payment" }, { "docid": "10191880", "title": "", "text": "its interest in the rents by taking actual or constructive possession of the mortgaged property. Although the right of a mortgagee, such as Streiker, to receive rents does not ripen until the mortgagee obtains actual or constructive possession of the mortgaged property, the right of the mortgagee to demand rents ripens upon default. See Miners, 12 A.2d at 812; Colbassani, 48 A.2d at 107. Streiker held a conditional right to demand the rents the moment the rent assignment was executed. As the Court of Appeals for the Second Circuit recently explained, “[t]he failure of a secured party to perform enforcement procedures prior to bankruptcy merely renders an interest inchoate, not nullified.” In re Vienna Park Properties, 976 F.2d 106,112 (2d Cir.1992). A mortgagee under Pennsylvania law must obtain either actual or constructive possession of the realty before it will have a present right to demand rents from tenants and “enforce” its assignment of rents. The “enforcement” of a right to receive rents is a concept distinct and apart from “perfection.” Although “perfection” is a clearly understood concept under the Uniform Commercial Code, its applicability to assignment of rents has been a source of continuing confusion. See, e.g., In re Mount Pleasant Ltd Partnership, 144 B.R. 727, 733 (Bankr.W.D.Mich.1992). This Court adopts the view that “enforcement” embodies all of the steps necessary for a party actually to collect rents, whereas “perfection,” for rent assignment purposes, is the process by which a secured party places third parties on notice of its interest and consequently provides protection against intervening third parties. See, e.g., Balcor Pension Investors v. Winston XXIV Limited Partnership, 147 B.R. 575, 579-80, 582-83 (D.Kan.1992), appeal dismissed, 988 F.2d 1012 (10th Cir.1993); In re GOCO Realty Fund I, 151 B.R. 241, 248 (Bank.N.D.Cal., 1993); In re Vienna Park Properties, 136 B.R. 43, 54 (Bankr. S.D.N.Y.1992), aff'd, 976 F.2d 106 (2d Cir. 1992); In re Park at Dash Point, L.P., 121 B.R. 850 (Bankr.W.D.Wa.1990), aff'd, 985 F.2d 1008 (9th Cir.1993). This Court does not agree that a creditor must have obtained a present right to receive rents prior to the bankruptcy in" }, { "docid": "6443284", "title": "", "text": "of the owner of real property to mortgage, pledge or assign the rents and profits, or any trustee under a mortgage or trust deed either contemporaneously or upon the happening of a future event of default, from entering into possession of any real property, other than farm lands or the homestead of the mortgagor or his successor in interest, for the purpose of collecting the rents and profits hereof for application in accordance with the provisions of the mortgage or trust deed or other instrument creating the lien, nor as any limitation upon the power of a court of equity to appoint a receiver to take charge of such real property and collect such rents and profits thereof for application in accordance with the terms of such mortgage, trust deed or assignment. Although R.C.W. 7.28.230 was substantively amended in 1969, there are only two reported decisions which interpret the statute as amended. The first, In re Federal Shopping Way, Inc., 457 F.2d 176 (9th Cir.1972), held that the 1969 amendments did not have retroactive effect. The second, In re Johnson, 62 B.R. 24 (9th Cir.BAP 1986), provides some guidance and will be discussed in further detail below. Traveler’s has asked the Court to determine that it has a valid and perfected assignment of rents. Such a determination would permit Traveler’s to collect the rents and would transform them into cash collateral pursuant to § 363 of the Code. 11 U.S.C. § 363. In support, Traveler’s argues that it holds an absolute or perfected assignment of rents and is entitled to collect them without taking any additional steps. Traveler’s contends that pursuant to the documentation of the loan, the debt- or merely has a license to collect rents, and that the license was revoked on default. On the other hand, the debtor argues that Traveler’s has nothing more than an inchoate lien on the rents which can only be perfected under State law by the mortgagee (Traveler’s) taking possession of the building or by the appointment of a receiver. The debtor further contends that as a result, Traveler’s does not have" }, { "docid": "13665412", "title": "", "text": "has protected its security interests in a mortgagor’s property and rental proceeds by perfecting its liens under the requirements of state law, then those interests do not later become property of the bankruptcy estate. Once bankruptcy is filed, the debt- or has the right to the use of the rental proceeds only if the security interests were not perfected under state law. Id. at 375. The central issue before the bankruptcy court in Century was whether rents subject to the mortgagee’s lien were cash collateral. Century, 155 B.R. at 1003 (Bankr.E.D.Wisc.1989). Moreover, the sole issue on appeal at both the district and appellate court levels was whether the mortgagee’s interest was duly perfected so that it would be entitled to adequate protection pursuant to Code section 363. Century, 937 F.2d at 372, 375 (7th Cir.1991); Century, 1990 U.S.Dist. LEXIS 8128 at *5 (E.D.Wisc. April 26, 1990). Furthermore, the Seventh Circuit in Century affirmed the bankruptcy court’s ruling that the postpetition rents were cash collateral and the mortgagee only held a secured interest in those rents. 937 F.2d at 380 (reinstating the order of In re Century Investment Fund VIII L.P., 155 B.R. 1002 (Bankr.E.D.Wisc.1989)). It is clear that the introductory statement is dicta. The language is only understandable if the court meant to refer to the debtor’s unfettered use of the mortgagee’s security without protecting that interest. At no time did the Seventh Circuit in Century enter a direct holding that there was a transfer of title so that the assigned rents were no longer property of the estate. The bankruptcy court in In re Willows of Coventry Ltd. Partnership, 154 B.R. 959 (Bankr.N.D.Ind.1993), has analyzed the Seventh Circuit’s opinion in Century. Willows dealt with the issue of whether rents subject to an assignment in favor of a mortgagee who obtained the appointment of a receiver prepetition constitute property of the bankruptcy estate. In Willows, the Chapter 11 debtor in possession of an apartment complex sought turnover of rents from the receiver who had been appointed prepetition during a state court foreclosure action instituted by the mortgagee. As the court" }, { "docid": "11422548", "title": "", "text": "a perfected security interest and lien when properly recorded, but it is not enforceable until the creditor has taken steps which entitle the creditor to enforce it lien rights. This enforcement may be by an agreement between the parties that the creditor may collect rents after default or by the creditor obtaining the appointment of a receiver. Kershaw v. Squier, 137 Kan. 855, 857, 22 P.2d 468 (1933); See also Missouri Valley, 745 P.2d at 685. However, formal appointment of a receiver is not the only way a creditor can obtain possession of the rents. In Hall, 14 P.2d at 661-62, the court noted that “any proper procedure which would empower the court to control the rents and profits would be sufficient to vest the mortgagee with title thereto.... ” The court went on to hold that since the parties had agreed that the mortgagee would hold the rents, such action had the effect of the appointment of receiver. Hall, 14 P.2d at 662. Thus, under cases such as Hall and In re Centre Missouri Limited, the creditor can enforce its right to receive the rents under several circumstances, including: if the parties have agreed that the creditor can collect the rents upon default; the creditor has obtained appointment of a receiver; the creditor has taken possession; or the creditor has taken some action which is equivalent to possession. Here, Traveler’s filing of the motion to sequester rents was an sufficient action equivalent to the taking of possession of the property to allow enforcement of the lien on rents. Therefore, under Kansas law, as Cherry Creek and the above cases demonstrate, there is no question that Travelers had a security interest and lien in debtor’s rents that was both properly perfected on the date of bankruptcy and generally enforceable. Travelers’ lien was perfected on December 12, 1985 when Travelers recorded the written assignment containing a security agreement pertaining to the rents. ASSIGNMENT OF RENTS AND THE BANKRUPTCY CODE The limited partners argue that Travelers is not entitled to any of the rents prior to appointment of the receiver on February" }, { "docid": "18493847", "title": "", "text": "of the premises described in said leases or in the Mortgage and have, hold, manage, lease and operate the same on such terms and for such period of time as the Assignee may deem proper and, either with or without taking possession of said premises, in the name of the Assignor or in its own name as assignee, demand, sue for or otherwise collect and receive all rents, income and profits of said premises_ In the event the As-signee exercises the rights granted it in this paragraph lettered “B”, the Assign- or shall use its best efforts and due diligence to facilitate the Assignee’s collection of said rents. Promptly upon the request of the Assignee following an Event of Default, the Assignor shall execute and deliver a written notice to each and every tenant directing the tenant to pay rent to the Assignee.... Accordingly, on May 7,1991, just prior to the bankruptcy filing, Travelers alleges that it made entry upon the property and filed a certificate of entry with the Norfolk Registry of Deeds pursuant to M.G.L. ch. 244, § 2, certifying that it made open, peaceable and unopposed entry. Travelers also states that it gave notice to each of the tenants that rents should be paid to Travelers. The Debtor characterizes Travelers’ actions as an “attempted entry” and as trespassing. However, it acknowledges that Travelers sent letters to the tenants directing them to make future payments to Travelers and that Travelers initiated a lawsuit in the state court. Recent decisions in this jurisdiction unequivocally support the conclusion that Travelers has a perfected security interest in the rents generated by the Cantonwood property. Compare In re Milford Common J.V. Trust, 117 B.R. 15 (Bankr.D.Mass.1990) (Massachusetts law requires an overt act by the assignee to take actual or constructive possession for it to be entitled to the rents); In re Ashford Apartments Limited Partnership, 132 B.R. 217, 219 (Bankr.D.Mass.1991) (“a mortgagee who enters the property and gives notice of that fact to tenants prior to the filing of that petition under the Bankruptcy Code has done all that is required to" } ]

[ { "docid": "18742960", "title": "", "text": "must be held at a time other than regularly scheduled. In cases of regularly scheduled review hearings occurring one month or less apart, the establishment of a regular hearing schedule will itself constitute sufficient notice. Staff and Inmate Reaction The state contends that fear of adverse staff reaction or adverse inmate reaction may be considered as criteria in the close management review process. The district court rejected that position. Clark, 578 F.Supp. at 1513. To the extent that the mere possibility of adverse staff or inmate reaction, absent any other reason for continuing an inmate’s segregation, is used as a basis for continuing an inmate’s segregation, we agree with the district court that this does not provide an adequate ground in and of itself upon which to keep an inmate in close management. See Kelly, 525 F.2d at 401. However, to the extent that prison officials on the basis of their experience, knowledge of the institution, and informed intuition reasonably conclude that an inmate’s release into the general penitentiary population will result in adverse prisoner reaction or will in some way endanger the penitentiary staff, such criteria may provide a legitimate basis for retaining an inmate in close management. By necessity, the judgment of penitentiary officials in these types of situations will not be easily measured in objective terms. Instead, their determination must often of necessity be based upon many “imponderable factors” which necessarily take into account “purely subjective evaluations and * * * predictions of future behavior.” Hewitt, 459 U.S. at 474, 103 S.Ct. at 873 (quoting Dumschat, 452 U.S. at 464, 101 S.Ct. at 2464). Right to Call Witnesses The district court also concluded that inmates should generally be allowed to call witnesses unless to do so would result in an unacceptable security risk. Clark, 578 F.Supp. at 1513-14. We generally disagree. Clearly, penitentiary officials must engage in some sort of periodic review in order to determine whether an inmate placed in close management remains a security risk. Hewitt, 459 U.S. at 477 n. 9, 103 S.Ct. at 874 n. 9. However, unlike a Wolff type disciplinary hearing," } ]

[ { "docid": "18999130", "title": "", "text": "beyond the normal limits which [Plaintiffs] conviction has authorized the state to impose.” See Sandin, at -, 115 S.Ct. at 2298, quoting Meachum v. Fano, 427 U.S. at 225, 96 S.Ct. at 2538. There is no federally protected right not to be placed in administrative segregation. See, Hewitt v. Helms, 459 U.S. at 468, 103 S.Ct. at 869-70. Nor is there a federally protected liberty interest in transfer from one institution to another. Meachum, 427 U.S. at 225, 96 S.Ct. at 2538-39. Therefore, Plaintiff possessed no liberty interest in freedom from SHU confinement unless the interest was created by the applicable state regulation, California Code of Regulations Title 15 § 3341.5(c)(3). Prior to Sandin, the Ninth Circuit held that California has created a liberty interest in freedom from administrative segregation. Toussaint v. McCarthy, 801 F.2d 1080, 1098 (9th Cir.1986), cert. denied, 481 U.S. 1069, 107 S.Ct. 2462, 95 L.Ed.2d 871 (1987). Applying a Hewitt analysis, the court found that California Code of Regulations Title 15 § 3335 provides the substantive predicates which, combined with the mandatory language in § 3339(a) , operate to create a liberty interest. Id. at 1097. Although the Ninth Circuit has not addressed the question whether § 3341.5(c)(3) also creates a liberty interest in being released from punitive confinement in SHU, Chief Judge Thelton E. Henderson of this Court found such an interest in Madrid v. Gomez, 889 F.Supp. 1146, 1271-72 (N.D.Cal.1995). The regulation explicitly and substantively limits the exercise of discretion by imposing a mandatory duty on state officials to release an inmate from the SHU unless one of three predicates are met. Id. Analogizing to Toussaint, the Court found that by employing such mandatory language, California similarly created a liberty interest in release from the SHU. Id. The Toussaint and Madrid decisions, however, did not analyze the degree of hardship imposed on inmates by confinement in administrative segregation or SHU. Under the new rule of Sandin, the issue of whether the mandatory language in § 3341.5 creates a liberty interest is not reached unless it is first determined that Plaintiffs confinement in SHU imposed" }, { "docid": "18999133", "title": "", "text": "stated below, Plaintiff cannot prevail even if a liberty interest is implicated. Accordingly, the Court will assume for purposes of this opinion that solitary confinement in SHU does differ significantly from the ordinary incidents of prison life in the California prison system. Assuming that freedom from solitary confinement in SHU meets the threshold test of Sandin, Section 8341.5 appears to create a liberty interest in inmates. The statute employs mandatory substantive criteria to curb official discretion. Prison officials may not retain a prisoner in SHU beyond his MERD absent a threat to prison security or a voluntary request by the inmate to remain in the SHU. However, assuming that Plaintiff had a liberty interest in release from the SHU, that interest was not infringed by his retention in SHU beyond his scheduled release date of November 18, 1992 and pending his transfer to CMC because the mandatory language in § 3341.5, as well as the requirements of due process, were satisfied by the ICC findings. Section 3341.5(c)(3) provides that “an inmate shall not be retained in SHU beyond the expiration of a determinate term ... unless ... (B) release of the inmate would severely endanger the lives of inmates or staff, or (C) the inmate has voluntarily requested continued retention in segregation.” Cal.Code Regs. Title 15, § 3341.5(e)(3). Both of these exceptions are applicable here. The Ninth Circuit has found that under the Due Process Clause, findings supporting administrative confinement in segregation may be made at an informal nonadver-sarial hearing. Toussaint, 801 F.2d at 1100-01. Such a hearing was held by the ICC. Due process does not require representation by counsel, an opportunity to present witnesses or a written decision describing the reasons for retention in administrative segregation. Id. Judicial review of placement in administrative segregation is severely restricted. Toussaint, 801 F.2d at 1103-1106. Courts must accord wide-ranging deference to prison administrators “in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Id. at 1104, citing Bell v. Wolfish, 441 U.S. 520, 547, 99" }, { "docid": "3028692", "title": "", "text": "order that prison officials provide at least one hour of outside recreation per day, five days a week). Although the court in Spain declined to decide whether deprivation of outdoor exercise was a “per se violation” of the Constitution, the court recognized that “some form of regular outdoor exercise is extremely important to the psychological and physical well being of the inmates.” Id. at 199. The court emphasized that the plaintiffs were in long-term incarceration where they were in continuous segregation, generally spending twenty-four hours each day in their cells alone. Id. Under these conditions, deprival of outdoor exercise constituted cruel and unusual punishment. Id.; see also Toussaint v. Yockey, 722 F.2d 1490, 1493 (9th Cir.1984) (“substantial constitutional question” raised when prison officials failed to provide sufficient exercise to inmates assigned to administrative segregation for over one year). After four months of segregation for disciplinary infractions, Allen continued to be held, as a Phase I inmate, under highly restrictive conditions of confinement on an open-ended and potentially long-term basis. Like the plaintiffs in Spain, inmates in SHU generally are confined to their cell unless they visit the law library, recreation area, or infirmary. Although they may talk to other inmates through the cell walls, they have limited physical contact with other inmates. Given the highly restrictive conditions of confinement and the indeterminate length of incarceration under these conditions, a reasonable prison official should have known that Spain required him to provide Allen with regular outdoor exercise. Salgado has offered no justification for his failure to afford Allen with both use of the law library and regular outdoor exercise. Cf. LeMaire v. Maass, 12 F.3d 1444, 1458 (9th Cir.1993) (upholding denial of exercise rights to inmate who had attacked prison guards in exercise yard and vowed to attack them again); Hayward v. Procunier, 629 F.2d 599, 603 (9th Cir.1980) (upholding month-long de-prival of outdoor exercise during “lockdown” issued in response to a “genuine emergency”), cert. denied, 451 U.S. 937, 101 S.Ct. 2015, 68 L.Ed.2d 323 (1981). Instead, Salgado attempts to distinguish Spain on the grounds that HMSF does not have a" }, { "docid": "18575086", "title": "", "text": "the SHU for indeterminate terms must be reviewed by a classification committee every 180 days for consideration of release to the general inmate population. Cal. Code Regs. tit. 15, § 3341.5(c). Plaintiffs contend that a 180-day timetable violates constitutional requirements. See Toussaint VI, 926 F.2d at 803 (finding 120-day schedule permissible without deciding whether 120 days represents outer constitutional limit). We conclude, however, that this issue is not ripe for review. Despite the 180-day allowance in the regulations, the record reflects that defendants actually conduct reviews at Pelican Bay every 120 days; plaintiffs have identified no class member that has been required to wait 180 days for a classification review. Nor have plaintiffs submitted any evidence indicating that the current 120-day schedule is likely to be extended to 180 days in the future. (ii) Failure to Consider Lack of Gang Activity or “Exculpatory Evidence” As discussed above, due process requires that there be “some evidence” with “some indicia of reliability” to support an inmate’s placement in administrative segregation. Toussaint IV, 801 F.2d at 1103-06. This same standard applies to subsequent periodic reviews conducted every 120 days by the UCC, and annually by the ICC. Under current policy, an inmate is considered to be a security threat so long as the inmate is validated as a gang affiliate and has not yet debriefed. Thus, a validated inmate will continue to be retained in the SHU, absent a successful debriefing, even if the inmate has, for some period of time “remained clean”— i.e., there is no evidence of continued commitment to the gang, as reflected by participation in gang activity or association with other gang members. For example, an inmate who was validated in 1979, but has not engaged in any gang activity or otherwise associated with gang members since then, will still be retained in the SHU in 1994, fifteen years later, absent a successful debriefing. The lack of continuing evidence of gang membership or activity is simply considered irrelevant since the justification for administration segregation is the fact of gang membership itself, not any particular behavior or activity. Plaintiffs contend" }, { "docid": "18575217", "title": "", "text": "case presents a question of law for the Court to decide. Quick v. Jones, 754 F.2d 1521, 1523 (9th Cir.1985). . State \"law” may include statutes, codes, and regulations, including prison regulations, official policies and customs. See, e.g., Toussaint IV, 801 F.2d at 1097; Clark v. Brewer, 776 F.2d 226, 230 (8th Cir.1985); Hayward v. Procunier, 629 F.2d 599, 601 (9th Cir.1980), cert. denied, 451 U.S. 937, 101 S.Ct. 2015, 68 L.Ed.2d 323 (1981). . The full text of section 3341.5(c)(3) reads as follows: \"Release from SHU. An inmate shall not be retained in SHU beyond the expiration of a determinate term or beyond 11 months, unless the classification committee has determined before such time that continuance in the SHU is required for one of the following reasons: (A) The inmate has an unexpired MERD from SHU. (B) Release of the inmate would severely endanger the lives of inmates or staff, the security of the institution, or the integrity of an investigation into suspected criminal activity or serious misconduct. (C) The inmate has voluntarily requested continued retention in segregation.” . In his Third Special Report, the Monitor noted that “gang membership ... is inherently virtually impossible to ascertain or discover with precision. The gang's only tangible existence is in the minds of the prisoners and prison officials. It is quite unlikely that any two individuals would independently list the same set of persons as members of the group.” Third Special Report of the Monitor at ¶ 33 (\"Monitor's Report”). . As the Toussaint Monitor observed, the ICCs “rely heavily upon any conclusion which the CAC has reached concerning the relationship between the prisoner and a gang.... Since at least 1984, the policy ... has been to segregate all ‘known’ prison gang members. Therefore, the CAC’s determination that a prisoner belongs to a prison gang carries with it the virtually inevitable consequence that the ICC will decide that the prisoner must remain in [segregation] ...” Monitor’s Report at ¶ 39. . See also McCollum v. Miller, 695 F.2d 1044, 1049 (7th Cir.1982) (\"not all prison inmates who inform on other inmates" }, { "docid": "18999136", "title": "", "text": "eared for by professional people” rather than “kept in solitary confinement 22 hours every day in Pelican Bay.” Motion in Opposition to Defendant’s Response, p.2. Because an inmate has no liberty interest in transfer, the delay in Plaintiffs transfer to CMF was not a constitutional violation. CONCLUSION Accordingly, the Court GRANTS Defendant’s motion for summary judgment regarding retention of Plaintiff in SHU beyond his scheduled release date of November 12,1992. The Court also GRANTS summary judgment regarding the retention of Plaintiff in administrative segregation pending transfer from December 17, 1992 to February 18, 1993. IT IS SO ORDERED. JUDGMENT For the reasons set forth in the Order Granting Summary Judgment filed August 21, 1995, IT IS HEREBY ORDERED AND ADJUDGED That Plaintiff Cleotha Jones take nothing, that the action be dismissed on the merits, and that each party shall bear its own costs. . A \"chrono” is a memorandum recording information pertinent to a particular inmate. A copy of each chrono pertaining to a particular inmate is placed in that inmate's permanent prison record. . Halawa prison’s general population inmates are confined to cells anywhere from twelve to sixteen hours a day, depending on their classification. Sandin, at -n. 8, 115 S.Ct. at 2301 n. 8. . Justice Breyer dissented from the majority opinion because, applying the analysis indicated by the majority, he would have found that Conner’s interest did meet the threshold test because the deprivation was significant and atypical. .§ 3341.5(c)(3) provides that “an inmate shall not be retained in SHU beyond the expiration of a determinate term or beyond 11 months, unless the classification committee has determined before such time that continuance in the SHU is required for one of the following reasons: (A) The inmate has an unexpired MERD from SHU. (B) Release of the inmate would severely endanger the lives of inmates or staff, the security of the institution, or the integrity of an investigation into suspected criminal activity or serious misconduct. (C) The inmate has voluntarily requested continued retention in segregation.” . § 3335 permits placement in administrative segregation where the presence of the" }, { "docid": "18999137", "title": "", "text": "Halawa prison’s general population inmates are confined to cells anywhere from twelve to sixteen hours a day, depending on their classification. Sandin, at -n. 8, 115 S.Ct. at 2301 n. 8. . Justice Breyer dissented from the majority opinion because, applying the analysis indicated by the majority, he would have found that Conner’s interest did meet the threshold test because the deprivation was significant and atypical. .§ 3341.5(c)(3) provides that “an inmate shall not be retained in SHU beyond the expiration of a determinate term or beyond 11 months, unless the classification committee has determined before such time that continuance in the SHU is required for one of the following reasons: (A) The inmate has an unexpired MERD from SHU. (B) Release of the inmate would severely endanger the lives of inmates or staff, the security of the institution, or the integrity of an investigation into suspected criminal activity or serious misconduct. (C) The inmate has voluntarily requested continued retention in segregation.” . § 3335 permits placement in administrative segregation where the presence of the inmate in the general population poses a threat to his own safety and/or poses a threat to an ongoing investigation of serious misconduct or criminal activity- . § 3339(a) provides that release from segregation shall occur at the earliest possible time in keeping with the circumstances and reasons for the inmate's initial placement in administrative segregation." }, { "docid": "18999134", "title": "", "text": "in SHU beyond the expiration of a determinate term ... unless ... (B) release of the inmate would severely endanger the lives of inmates or staff, or (C) the inmate has voluntarily requested continued retention in segregation.” Cal.Code Regs. Title 15, § 3341.5(e)(3). Both of these exceptions are applicable here. The Ninth Circuit has found that under the Due Process Clause, findings supporting administrative confinement in segregation may be made at an informal nonadver-sarial hearing. Toussaint, 801 F.2d at 1100-01. Such a hearing was held by the ICC. Due process does not require representation by counsel, an opportunity to present witnesses or a written decision describing the reasons for retention in administrative segregation. Id. Judicial review of placement in administrative segregation is severely restricted. Toussaint, 801 F.2d at 1103-1106. Courts must accord wide-ranging deference to prison administrators “in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Id. at 1104, citing Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979). The Supreme Court’s decision in Superintendent v. Hill, 472 U.S. 445, 455, 105 S.Ct. 2768, 2773-74, 86 L.Ed.2d 356 (1985) indicates that the due process clause requires only the existence of “some evidence” in support of prison administrator’s segregation decision. A reviewing court may not reverse the administration’s decision if “some evidence” supports the administration’s decision. Toussaint, 801 F.2d at 1105-06. In the instant case, the evaluations of Drs. Wissert and Fulton and Plaintiffs own statement before the ICC at the November 12, 1992 meeting that he did not want to go to the general population and “would do whatever necessary to anyone placed around him, including killing them,” Defs’ Memo, Exhibit C, constitute sufficient evidence that the ICC’s decision to retain Plaintiff in SHU beyond November 18th satisfied the requirements of Section 3341.5(c)(3). Plaintiff also claims that, after December 17, 1992, when the CSR endorsed the ICC’s recommendation that he be transferred to CMF for category “J” evaluation, he should have been “placed in a hospital and" }, { "docid": "3028693", "title": "", "text": "in SHU generally are confined to their cell unless they visit the law library, recreation area, or infirmary. Although they may talk to other inmates through the cell walls, they have limited physical contact with other inmates. Given the highly restrictive conditions of confinement and the indeterminate length of incarceration under these conditions, a reasonable prison official should have known that Spain required him to provide Allen with regular outdoor exercise. Salgado has offered no justification for his failure to afford Allen with both use of the law library and regular outdoor exercise. Cf. LeMaire v. Maass, 12 F.3d 1444, 1458 (9th Cir.1993) (upholding denial of exercise rights to inmate who had attacked prison guards in exercise yard and vowed to attack them again); Hayward v. Procunier, 629 F.2d 599, 603 (9th Cir.1980) (upholding month-long de-prival of outdoor exercise during “lockdown” issued in response to a “genuine emergency”), cert. denied, 451 U.S. 937, 101 S.Ct. 2015, 68 L.Ed.2d 323 (1981). Instead, Salgado attempts to distinguish Spain on the grounds that HMSF does not have a broad policy of denying outdoor recreation to all SHU inmates on a daily basis. Salgado maintains that it is constitutionally sufficient that Allen had at least six hours per week outside his cell and could choose whether to spend the time in the recreation area or in the law library. However, the district court noted correctly that Allen’s Fourteenth Amendment right to court access and his Eighth Amendment right to outdoor exercise are not “either/or” rights. An inmate should not have to forego outdoor recreation to which he would otherwise be entitled simply because he exercises his clearly established constitutional right of access to the courts. See Bounds, 430 U.S. at 828, 97 S.Ct. at 1498 (right of access to the courts is “fundamental” and requires prison officials to provide prisoners with law libraries). Although we recognize that exceptional circumstances sometimes may necessitate that an inmate make difficult choices between using the law library and pursuing other activities, an inmate cannot be forced to sacrifice one constitutionally protected right solely because another is respected. Whether" }, { "docid": "18999132", "title": "", "text": "“atypical and significant hardship on [Plaintiff] in relation to the ordinary incidents of prison life” or “[would] inevitably affect the duration of [a] sentence.” Sandin, — U.S. at -, 115 S.Ct. at 2300. The deprivations found in Toussaint and Madrid to implicate liberty interests in freedom from administrative segregation and in release from the SHU are distinguishable from the deprivation addressed in Sandin. Most significantly, in California, placement in administrative segregation is not totally discretionary as it is in the Hawaii regulatory scheme examined in Sandin. The Sandin Court relied on that total discretion to conclude that Conner’s confinement did not exceed the ordinary circumstances of prison life. The present action, like Toussaint and Madrid, is thus distinguishable from Sandin. However, there is no factual record in the instant case from which it can be determined whether Plaintiffs placement in SHU was a major disruption of the normal prison environment. Neither party had reason to offer proof on this issue. Ordinarily, the Court would give the parties opportunity to do so. However, for the reasons stated below, Plaintiff cannot prevail even if a liberty interest is implicated. Accordingly, the Court will assume for purposes of this opinion that solitary confinement in SHU does differ significantly from the ordinary incidents of prison life in the California prison system. Assuming that freedom from solitary confinement in SHU meets the threshold test of Sandin, Section 8341.5 appears to create a liberty interest in inmates. The statute employs mandatory substantive criteria to curb official discretion. Prison officials may not retain a prisoner in SHU beyond his MERD absent a threat to prison security or a voluntary request by the inmate to remain in the SHU. However, assuming that Plaintiff had a liberty interest in release from the SHU, that interest was not infringed by his retention in SHU beyond his scheduled release date of November 18, 1992 and pending his transfer to CMC because the mandatory language in § 3341.5, as well as the requirements of due process, were satisfied by the ICC findings. Section 3341.5(c)(3) provides that “an inmate shall not be retained" }, { "docid": "18575064", "title": "", "text": "is met: (1) the inmate presents an immediate threat to the safety of the inmate or others, (2) the inmate endangers institution security, or (3) the inmate jeopardizes the integrity of an investigation of an alleged serious misconduct or criminal activity. As such, they sufficiently fetter official decision-making to create a protected liberty interest. Although not addressed by Toussaint IV, we conclude that another California regulation, Cal.Code Regs. tit. 15, § 3341.5(c)(3), also creates a liberty interest in freedom from administrative segregation. That' section provides that an inmate shall not be retained in the SHU beyond 11 months absent a classification committee determination that retention in the SHU is required because of one of three specific reasons: “(A) The inmate has an unexpired [Minimum Eligible Release Date] from the SHU, (B) Release of the inmate would severely endanger the lives of inmates or staff, the security of the institution, or the integrity of a investigation into suspected criminal activity or serious misconduct, [or] (C) The inmate has voluntarily requested continued retention in segregation.” Cal.Code Regs. tit. 15, § 3341.5(c)(3). Like the regulations examined in Toussaint IV, section 3341.5(c) explicitly and substantively limits the exercise of official discretion by imposing a mandatory duty on state officials to release an inmate from the. SHU unless one of the above three predicates is met. Accordingly, section 3341.5(c) provides a separate basis for plaintiffs’ liberty interest in being housed in the general prison population with respect to those inmates that have been confined in the SHU for over 11 months. Given the above, defendants may not confine prison gang members in the SHU, nor hold them there on indeterminate terms, without providing them the quantum of procedural due process required by the Constitution. 2. Amount of Process Required by the Due Process Clause The Supreme- Court has twice addressed the amount of due process that the Constitu tion affords inmates with protected liberty interests. In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the Court considered the process required before a prison official can punish an inmate for serious" }, { "docid": "18999131", "title": "", "text": "mandatory language in § 3339(a) , operate to create a liberty interest. Id. at 1097. Although the Ninth Circuit has not addressed the question whether § 3341.5(c)(3) also creates a liberty interest in being released from punitive confinement in SHU, Chief Judge Thelton E. Henderson of this Court found such an interest in Madrid v. Gomez, 889 F.Supp. 1146, 1271-72 (N.D.Cal.1995). The regulation explicitly and substantively limits the exercise of discretion by imposing a mandatory duty on state officials to release an inmate from the SHU unless one of three predicates are met. Id. Analogizing to Toussaint, the Court found that by employing such mandatory language, California similarly created a liberty interest in release from the SHU. Id. The Toussaint and Madrid decisions, however, did not analyze the degree of hardship imposed on inmates by confinement in administrative segregation or SHU. Under the new rule of Sandin, the issue of whether the mandatory language in § 3341.5 creates a liberty interest is not reached unless it is first determined that Plaintiffs confinement in SHU imposed “atypical and significant hardship on [Plaintiff] in relation to the ordinary incidents of prison life” or “[would] inevitably affect the duration of [a] sentence.” Sandin, — U.S. at -, 115 S.Ct. at 2300. The deprivations found in Toussaint and Madrid to implicate liberty interests in freedom from administrative segregation and in release from the SHU are distinguishable from the deprivation addressed in Sandin. Most significantly, in California, placement in administrative segregation is not totally discretionary as it is in the Hawaii regulatory scheme examined in Sandin. The Sandin Court relied on that total discretion to conclude that Conner’s confinement did not exceed the ordinary circumstances of prison life. The present action, like Toussaint and Madrid, is thus distinguishable from Sandin. However, there is no factual record in the instant case from which it can be determined whether Plaintiffs placement in SHU was a major disruption of the normal prison environment. Neither party had reason to offer proof on this issue. Ordinarily, the Court would give the parties opportunity to do so. However, for the reasons" }, { "docid": "12687888", "title": "", "text": "punishment. Id.; see also Toussaint v. Yockey, 122. F.2d 1490, 1493 (9th Cir.1984) (denial of outdoor exercise to inmates assigned to administrative segregation for over one year raised “substantial constitutional question”). Defendants’ analogy to LeMaire v. Maass, 12 F.3d 1444, 1458 (9th Cir.1993), is flawed. In LeMaire we found no constitutional violation from a termination of the plaintiffs exercise privileges “for considerable periods of time” after he attacked two correctional officers with a weapon as he left the yard, then vowed to attack them again. Although Smith was placed in SHU at HHSF because of disciplinary infractions, unlike the plaintiff in LeMaire, Smith did not lose his exercise privileges based on a determination by prison officials that he presented a “grave security risk when outside his cell” and that measures were necessary to deter violent behavior separating Smith from the rest of the population in SHU. See LeMaire, 12 F.3d at 1458. Here, the defendants acknowledge that they have a goal of providing five hours exercise per week and do not suggest that Smith poses particular problems in the exercise yard. Their only excuse is that logistical problems made it difficult to provide adequate exercise. According to the defendants, scheduling an inmate’s time in the exercise yard was difficult because, for security reasons, inmates had to be accompanied to the recreation yard by a guard and only one inmate could use the recreation yard at a time. We recognize that the practical difficulties that arise in administering a prison facility from time to time might justify an occasional and brief deprivation of an inmate’s opportunity to exercise outside. However, we cannot accept the defendants’ excuses as justifying, as a matter of law at the summary judgment stage, the deprivation that took place here. Cf. LeMaire, 12 F.3d at 1458 (upholding denial of outdoor exercise to inmate representing “grave security risk”); Hayward v. Procunier, 629 F.2d 599, 603 (9th Cir.1980) (upholding temporary deprivation of outdoor exercise during “lockdown” initiated during a “genuine emergency”), cert. denied, 451 U.S. 937, 101 S.Ct. 2015, 68 L.Ed.2d 323 (1981). Smith’s incarceration in SHU was indefinite" }, { "docid": "18575215", "title": "", "text": "and sanctions either used in exigent circumstances or imposed with considerable due process, and designed to alter Le-Maire’s manifestly murderous, dangerous [conduct].” Id. at 1452-53 (emphasis added). Here, plaintiffs are not challenging measures designed to respond to the particular behavior problems posed by a particular inmate. Rather, they are challenging routinized, basic conditions on the ground that they adversely affect serious mental health needs. We are not persuaded that Whitley was intended to stretch so far beyond its borders so as to govern the challenge to conditions presented here. . Once defendants were aware of the risk, they were obligated to consider the risk seriously, and to conduct adequate inquiries. See Farmer, — U.S. at — n. 8, 114 S.Ct. at 1982 n. 8 (defendant may \"not escape liability if the evidence showed that he merely refused to verify underlying facts that he strongly suspected to be true, or declined to confirm inference of risk that he strongly suspected to exist”). Cf. Jordan, 986 F.2d at 1529 (prison officials have duty to consider issue carefully and to “afford sufficient weight to the constitutional rights of individuals”). . Although Redman involved Fourteenth Amendment protections, the Ninth Circuit therein explicitly recognized that the Eighth Amendment imposes a duty on prison officials at least as rigorous. Redman, 942 F.2d at 1442-1443. . Some of the inmates who were involved in only one or two fights may have had an established history of assaulting inmates at prior institutions; however, plaintiffs have not identified what percentage of such inmates would fall into this category. . There is evidence in the record that requests for single cells in the SHU are common; however, there was no evidence presented as to whether such requests were prompted by a desire for the privacy offered by a single cell, by a fear of attack from cellmates, or for some other reason or combination of reasons. . We note that plaintiffs have not mounted a constitutional challenge to defendants' debriefing policy. Thus, the Court has not considered or addressed this issue. . The amount of process due in any given" }, { "docid": "18575063", "title": "", "text": "quotations omitted); Conner, 994 F.2d at 1411; Toussaint IV, 801 F.2d at 1095 (regulations that follow a “shall/unless” formula create liberty, interest); Nelson v. Bryan, 607 F.Supp. 959, 961 (D.Nev.1985) (state creates liberty interest by requiring decision-makers to base decisions on objective and defined criteria). The liberty interest at issue here is the interest of prisoners in remaining in the general prison population and not being confined in a security housing unit. As the higher courts have held, the due process clause itself does not protect such an interest. See, e.g., Hewitt, 459 U.S. at 467-468, 103 S.Ct. at 869-70; Smith v. Noonan, 992 F.2d at 989. In Toussaint IV, however, the Ninth Circuit held that sections 3335(a) 3336, and 3339(a) of Title 15 of the California Code of Regulations, taken together, do create a constitutionally protected liberty interest to be free from placement in administrative segregation. 801 F.2d at 1097-98. As the Court explained, these regulations combine to prohibit state officials from retaining an inmate in administrative segregation unless one of three substantive predicates is met: (1) the inmate presents an immediate threat to the safety of the inmate or others, (2) the inmate endangers institution security, or (3) the inmate jeopardizes the integrity of an investigation of an alleged serious misconduct or criminal activity. As such, they sufficiently fetter official decision-making to create a protected liberty interest. Although not addressed by Toussaint IV, we conclude that another California regulation, Cal.Code Regs. tit. 15, § 3341.5(c)(3), also creates a liberty interest in freedom from administrative segregation. That' section provides that an inmate shall not be retained in the SHU beyond 11 months absent a classification committee determination that retention in the SHU is required because of one of three specific reasons: “(A) The inmate has an unexpired [Minimum Eligible Release Date] from the SHU, (B) Release of the inmate would severely endanger the lives of inmates or staff, the security of the institution, or the integrity of a investigation into suspected criminal activity or serious misconduct, [or] (C) The inmate has voluntarily requested continued retention in segregation.” Cal.Code Regs." }, { "docid": "18999111", "title": "", "text": "ORDER GRANTING SUMMARY JUDGMENT WILKEN, District Judge. Plaintiff Cleotha Jones, a prisoner at Vaca-ville state prison, filed this civil rights action under 42 U.S.C. § 1983 regarding (1) his confinement in a Secured Housing Unit at Pelican Bay state prison beyond his scheduled release date from SHU and (2) Defendants’ subsequent failure to transfer Plaintiff from the SHU at Pelican Bay back to Vaca-ville until two months after the Classification Security Representative (“CSR”) approved such a move. Plaintiff, proceeding in forma pauperis and pro se, alleges that he was deprived of a liberty interest created by California Code of Regulations Title 15 § 3341.5 when Defendants retained him in SHU beyond his scheduled release date and continued to retain him after the CSR endorsed his transfer back to Vacaville. Defendants move for summary judgment, and Plaintiff opposes the motion. After careful consideration of the parties’ papers and the record as a whole, and good cause appearing, Defendants’ motion is GRANTED in its entirety for the reasons stated below. STATEMENT OF FACTS On September 17, 1992, Plaintiff was transferred from the California Medical Facility (“CMF”) at Vacaville to a Secured Housing Unit (SHU) at Pelican Bay to serve a determinate term after being found guilty at a disciplinary hearing of assault on another inmate. Memorandum of Points and Authorities in Support of Defendants’ Motion for Summary Judgment (“Defs’ Memo”), Exhibit A Plaintiffs Minimum Eligible Release Date (“MERD”) from the SHU was November 18, 1992. On October 8,1992, an Institutional Classification Committee (“ICC”) met to conduct a pre-MERD review of Plaintiffs ease pursuant to California Code of Regulations Title 15 § 3341.5. Defs’ Memo, Exhibit B, Classification Chrono dated October 8, 1992. Plaintiff refused to appear. Id. The ICC recommended in his absence that he be transferred to a level IV general population at Folsom or Pelican Bay upon completion of his SHU term. Id. In its recommendation, the committee noted that Plaintiff had earlier been referred for psychiatric evaluation, which was still pending. Id. The committee referred the case with its recommendation to a Classification Staff Representative (CSR) for endorsement. Id." }, { "docid": "18575085", "title": "", "text": "hearsay statements. Cato, however, did not preclude the use of hearsay per se. See also Helms v. Hewitt, 655 F.2d 487, 502 (3rd Cir.1981), rev’d on other grounds, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983) (“We realize that in prison disciplinary proceedings hearsay may serve a useful purpose and we do not preclude it”). Rather, Cato held that where the only evidence in the record is a single, uncorroborated, hearsay statement, this does not constitute “some evidence” that has “some indicia of reliability.” Cato, 824 F.2d at 705. Plaintiffs have not demonstrated that defendants are failing to comply with the holding in Cato. f.Inadequacy of Periodic Reviews (i) Timing of Reviews Administrative segregation can not be used as a “pretext for indefinite commit ment of an inmate.” Hewitt, 459 U.S. at 477 n. 9, 103 S.Ct. at 874 n. 9. Thus, prison officials must conduct some sort of periodic review of the confinement of prisoners in administrative segregation. Id.; Toussaint IV, 801 F.2d at 1101. California regulations provide that inmates confined to the SHU for indeterminate terms must be reviewed by a classification committee every 180 days for consideration of release to the general inmate population. Cal. Code Regs. tit. 15, § 3341.5(c). Plaintiffs contend that a 180-day timetable violates constitutional requirements. See Toussaint VI, 926 F.2d at 803 (finding 120-day schedule permissible without deciding whether 120 days represents outer constitutional limit). We conclude, however, that this issue is not ripe for review. Despite the 180-day allowance in the regulations, the record reflects that defendants actually conduct reviews at Pelican Bay every 120 days; plaintiffs have identified no class member that has been required to wait 180 days for a classification review. Nor have plaintiffs submitted any evidence indicating that the current 120-day schedule is likely to be extended to 180 days in the future. (ii) Failure to Consider Lack of Gang Activity or “Exculpatory Evidence” As discussed above, due process requires that there be “some evidence” with “some indicia of reliability” to support an inmate’s placement in administrative segregation. Toussaint IV, 801 F.2d at 1103-06. This" }, { "docid": "18575065", "title": "", "text": "tit. 15, § 3341.5(c)(3). Like the regulations examined in Toussaint IV, section 3341.5(c) explicitly and substantively limits the exercise of official discretion by imposing a mandatory duty on state officials to release an inmate from the. SHU unless one of the above three predicates is met. Accordingly, section 3341.5(c) provides a separate basis for plaintiffs’ liberty interest in being housed in the general prison population with respect to those inmates that have been confined in the SHU for over 11 months. Given the above, defendants may not confine prison gang members in the SHU, nor hold them there on indeterminate terms, without providing them the quantum of procedural due process required by the Constitution. 2. Amount of Process Required by the Due Process Clause The Supreme- Court has twice addressed the amount of due process that the Constitu tion affords inmates with protected liberty interests. In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the Court considered the process required before a prison official can punish an inmate for serious misconduct after incarceration. Although the specific sanction at issue was denial of “good-time” credits, Wolff applies equally where the sanction is disciplinary segregation in a security housing unit such as the Pelican Bay SHU. Id. at 571, n. 19, 94 S.Ct. at 2982, n. 19; Conner, 994 F.2d at 1410-13; Toussaint IV, 801 F.2d at 1099. After balancing the competing interests at stake, the Court held that the inmate in Wolff was entitled to the following due process protections: (1) advance written notice of the disciplinary charges, (2) an opportunity to call witnesses and present evidence if doing so would not unduly jeopardize institutional safety or correctional goals, (3) assistance from another inmate or prison staff if the inmate is illiterate or the complexity of the issues makes it difficult to collect and present the evidence necessary for an adequate comprehension of the.case, and (4) a written decision and summary of the evidence relied on. Wolff, 418 U.S. at 563-70, 94 S.Ct. at 2978-82. The prison was not, however, required to permit the cross-examination of" }, { "docid": "12687889", "title": "", "text": "particular problems in the exercise yard. Their only excuse is that logistical problems made it difficult to provide adequate exercise. According to the defendants, scheduling an inmate’s time in the exercise yard was difficult because, for security reasons, inmates had to be accompanied to the recreation yard by a guard and only one inmate could use the recreation yard at a time. We recognize that the practical difficulties that arise in administering a prison facility from time to time might justify an occasional and brief deprivation of an inmate’s opportunity to exercise outside. However, we cannot accept the defendants’ excuses as justifying, as a matter of law at the summary judgment stage, the deprivation that took place here. Cf. LeMaire, 12 F.3d at 1458 (upholding denial of outdoor exercise to inmate representing “grave security risk”); Hayward v. Procunier, 629 F.2d 599, 603 (9th Cir.1980) (upholding temporary deprivation of outdoor exercise during “lockdown” initiated during a “genuine emergency”), cert. denied, 451 U.S. 937, 101 S.Ct. 2015, 68 L.Ed.2d 323 (1981). Smith’s incarceration in SHU was indefinite and therefore potentially long-term, and under admittedly “harsh” conditions. After Spain and Toussaint, it should have been apparent to defendants that they were required to provide regular outdoor exercise to Smith unless “inclement weather, unusual circumstances, or disciplinary needs made that impossible.” Spain, 600 F.2d at 199. We affirm the district court’s denial of defendants’ motion for summary judgment on Smith’s Eighth Amendment claim. IV Defendants also maintain that they are entitled to summary judgment on the ground of qualified immunity on Smith’s claims that they violated his right of access to the courts under Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). Smith claims that prison officials denied him access by refusing to photocopy his court papers despite his willingness to pay and by providing only a pencil, rather than a pen. Both of Smith’s right of access claims arise from his difficulties in filing papers in the state court in connection with his second attempt to. obtain post-conviction relief. Smith’s first petition for post-conviction relief had been denied." }, { "docid": "18575216", "title": "", "text": "and to “afford sufficient weight to the constitutional rights of individuals”). . Although Redman involved Fourteenth Amendment protections, the Ninth Circuit therein explicitly recognized that the Eighth Amendment imposes a duty on prison officials at least as rigorous. Redman, 942 F.2d at 1442-1443. . Some of the inmates who were involved in only one or two fights may have had an established history of assaulting inmates at prior institutions; however, plaintiffs have not identified what percentage of such inmates would fall into this category. . There is evidence in the record that requests for single cells in the SHU are common; however, there was no evidence presented as to whether such requests were prompted by a desire for the privacy offered by a single cell, by a fear of attack from cellmates, or for some other reason or combination of reasons. . We note that plaintiffs have not mounted a constitutional challenge to defendants' debriefing policy. Thus, the Court has not considered or addressed this issue. . The amount of process due in any given case presents a question of law for the Court to decide. Quick v. Jones, 754 F.2d 1521, 1523 (9th Cir.1985). . State \"law” may include statutes, codes, and regulations, including prison regulations, official policies and customs. See, e.g., Toussaint IV, 801 F.2d at 1097; Clark v. Brewer, 776 F.2d 226, 230 (8th Cir.1985); Hayward v. Procunier, 629 F.2d 599, 601 (9th Cir.1980), cert. denied, 451 U.S. 937, 101 S.Ct. 2015, 68 L.Ed.2d 323 (1981). . The full text of section 3341.5(c)(3) reads as follows: \"Release from SHU. An inmate shall not be retained in SHU beyond the expiration of a determinate term or beyond 11 months, unless the classification committee has determined before such time that continuance in the SHU is required for one of the following reasons: (A) The inmate has an unexpired MERD from SHU. (B) Release of the inmate would severely endanger the lives of inmates or staff, the security of the institution, or the integrity of an investigation into suspected criminal activity or serious misconduct. (C) The inmate has voluntarily requested" } ]

[ { "docid": "6785158", "title": "", "text": "same); Gilbert, 1 Vet.App. at 54 (setting forth chronological obligations under which claimant must submit well-grounded claim under section 5107(a) before Secretary is obliged to assist in developing the claim under that section and to apply the equipoise doctrine under section 5107(b)); see also Epps, 126 F.3d at 1468-69 (“under [38 U.S.C.] § 5107(a), [VA] has a duty to assist only those claimants who have established ‘well[-]grounded’ (i.e., plausible) claims”). In this regard, the Court notes that, as outlined in Winters, 12 Vet.App. at 208, issued by the en banc Court concurrently with this opinion, if the Court, on de novo review of all the evidence of record in support of the claim, were to determine that it is clear that the veteran’s underlying claim that is the subject of the reopening sought is not well grounded in terms of that favorable evidence (generally presuming its credibility, see Robinette and Caluza, both supra), the Court would not remand for the Board to apply 38 C.F.R. § 3.156(a) and Hodge because the failure to apply the regulation under such circumstances would not be prejudicial to the claimant. See 38 U.S.C. § 7261(b) (Court shall take due account of rule of prejudicial error); Edenfield, 8 Vet.App. at 390-91; cf. Soyini v. Derwinski, 1 Vet.App. 540, 546 (1991) (remand due to BVA’s deficient reasons or bases statement under 38 U.S.C. § 7104(d)(1) would impose unnecessary burden on BVA where “overwhelming evidence” supports BVA decision). If the Board finds on remand that the claim is reopened and is well grounded, it should under the 38 U.S.C. § 5107(a) duty to assist provide for a current medical examination, with the examiner directed to address the nexus issue after a review of all medical records and the claims file. See Smith (George) v. Brown, 8 Vet.App. 546, 553 (1996) (en banc) (“[w]hile the Board is not required to accept the medical authority supporting a claim, it must provide its reasons for rejecting such evidence and, more importantly, must provide a medical basis other than its own unsubstantiated conclusions to support its ultimate decision”). III. Conclusion Upon" } ]

[ { "docid": "3379928", "title": "", "text": "ORDER PER CURIAM: On July 14, 1999, in a panel opinion, the Court affirmed the Board of Veterans’ Appeals decision that determined that the appellant’s claims for service connection for hearing loss: varicose veins; a back disorder other than scoliosis of the thora-columbar vertebras; and shortening or lengthening of the right upper extremity were not well grounded. Morton v. West, 12 Vet.App. 477 (1999). Pursuant to the Court’s Internal Operating Procedures (IOP) at V.(a)(3), a judge requested en banc consideration. On consideration of the foregoing, and it appearing that a decision of the full Court is not necessary either to ensure uniformity of decision or to resolve a question of exceptional importance (see IOP at V.(b)), it is ORDERED that en banc consideration is DENIED. STEINBERG and KRAMER, Judges, dissenting: Judge Steinberg called for, and we voted for, a full Court decision in Morton v. West, 12 Vet.App. 477 (1999) because the panel opinion appears to be inconsistent with certain current caselaw (ignored by the panel), misinterprets 38 U.S.C. § 5107(a), and mischaracterizes the effect of the Foreword to the VA Adjudication Procedure Manual, M21-1, [hereinafter Manual M21-1], and because the issue involved is one of exceptional importance. Moreover, the Court’s issuance of this opinion prior to oral argument in Stuckey v. West, U.S. Vet.App. No. 96-1373 (oral argument scheduled for July 29, 1999), is most inadvisable, putting the Court in the apparent position of proceeding without regard to the contributions of the parties and amici in that case where the matter was presumably fully briefed at the direction/invitation of the Court. For the reasons set forth below, we believe that the opinion’s analysis is incomplete and unpersuasive. I. Analysis A. Contrary Court Caselaw The panel opinion ignores two precedents of this Court that are inconsistent with key portions of the Morton opinion’s analysis. In Patton v. West, the Court held that “[t]he [Board of Veterans’ Appeals (Board or BVA) ] cannot ignore provisions of the Manual M21-1 relating to PTSD [ (post-traumatic stress disorder) ] that are favorable to a veteran when adjudicating that veteran’s claim”, Patton, 12 Vet.App." }, { "docid": "6778257", "title": "", "text": "a death to considered service connected, it must result from a disability incurred or aggravated in the line of duty. As with any other type of claim, a claimant seeking DIC benefits has the initial burden of showing that the claim is well grounded. 38 U.S.C. § 5107; see Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). For a claim to be well grounded, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the in-service injury or disease and the current disability. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Epps v. Brown, 9 Vet.App. 341, 343-44 (1996), aff'd sub nom. Epps v. Gober, 126 F.3d 1464, 1468 (Fed.Cir.1997), cert. denied sub nom. Epps v. West, — U.S. -, 118 S.Ct. 2348, 141 L.Ed.2d 718 (1998). “[W]here the determinative issue involves medical causation or medical diagnosis, competent medical evidence to the effect that the claim is ‘plausible’ or ‘possible’ is required.” Grottveit, 5 Vet.App. at 93; see also Heuer v. Brown, 7 Vet.App. 379, 384 (1995). Whether a claim is well grounded is a question of law which the Court reviews de novo. See King v. Brown, 5 Vet.App. 19 (1993). In this case, the appellant’s claim is not well grounded because she has failed to submit medical evidence to provide a nexus between any in-service injury and the conditions which contributed to the veteran’s death. The veteran died of respiratory and renal conditions. On his POW survey, he listed a kidney condition, diabetes, and a cardiovascular condition, but he never asserted that he developed these problems in the POW camp. The appellant did submit a statement by Dr. Smith stating that in his opinion, the respiratory problems which contributed to the veteran’s death “could” have been precipitated by his time in a prisoner of war camp. Dr. Smith did not provide any further support for his conclusion. The Board found that" }, { "docid": "16956516", "title": "", "text": "Nor is there any medical evidence linking the claimed continuous symptoms to a current disability. Ibid. Accordingly, the veteran has not presented competent evidence connecting any current disability he may have to his period of service, and the Court therefore holds, on de novo review, that his claim for service connection is not well grounded. B. Duty to Assist Pursuant to 38 U.S.C. § 5107(a), once a claimant has submitted a well-grounded claim, the Secretary is required to assist that claimant in developing the- facts pertinent to the claim. See 38 C.F.R. § 3.159 (1997); Epps, 126 F.3d at 1469; Littke v. Derwinski, 1 Vet.App. 90, 91-92 (1990). Where the record does not adequately reveal the current state of the claimant’s disability and the claim is well grounded, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination. See Suttmann v. Brown, 5 Vet.App. 127, 138 (1993); Green (Victor) v. Derwinski, 1 Vet.App. 121, 124 (1991). “If a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.” 38 C.F.R. § 4.2 (1997); see also 38 C.F.R. § 19.9 (1997) (“[w]hen ... it is determined that further evidence or clarification of the evidence ... is essential for a proper appellate decision, ... the Board shall remand the case to the agency of original jurisdiction”). , In the present case, as we held in part II.A, above, the veteran has not submitted a well-grounded claim because the record on appeal does not contain competent medical evidence of nexus or evidence of continuity of symptomatology. Therefore, the statutory duty to assist had not attached, and VA’s failure to provide a complete examination (by conducting the recommended x-ray examination) could not have constituted a prejudicial violation of section 5107(a), See 38 U.S.C. § 7261(b) (“Court shall take due account of rule of prejudicial error”); Eden-field, 8 Vet.App. at 391 (Board’s reliance on medical treatise without requisite advance notice to claimant nonprejudicial when" }, { "docid": "16955855", "title": "", "text": "engaged in combat insofar as the decision failed to evaluate the veteran’s sworn testimony that he had engaged in combat. He also argues that VA failed to satisfy the 38 U.S.C. § 5107(a) duty to assist because the only stressor it attempted to verify was Lonnie Gay’s death. This case thus presents two issues: (1) The prop er standard for determining whether a veteran has engaged in combat as applied to this veteran’s case; and (2) the sufficiency of the alleged stressors in the instant case. A. Claim for PTSD Service Connection 1. Well-Grounded PTSD Claim. Section 5107(a) of title 38, U.S.Code, provides in pertinent part: “[A] person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded.” The Court has defined a well-grounded claim as follows: “[A] plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of [section 5107(a)].” Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). A well-grounded service-connection claim under 38 U.S.C. § 1110 generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the asserted in-service injury or disease and a current disability. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Epps v. Gober, 126 F.3d 1464, 1468 (Fed.Cir.1997) (expressly adopting definition of well-grounded claim set forth in Caluza, supra), cert. denied, — U.S. —, 118 S.Ct. 2348, 141 L.Ed.2d 718 (1998); Heuer v. Brown, 7 Vet.App. 379, 384 (1995) (citing Grottveit v. Brown, 5 Vet.App. 91, 93 (1993)); Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992) (absent “proof of a present disability!,] there can be no valid claim”). A Board determination whether a claim is well grounded is subject to de novo review" }, { "docid": "6869746", "title": "", "text": "from the claimant to the Secretary the burden specified in subsection (a) of this section. 38 U.S.C. § 5107(a) (emphasis added). Based on the explicit statutory language, structure, and purpose, see Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 138, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990), this Court has discerned a Congressional intent to create a chronological process whereby appellants who have met the requisite burden, and only those appellants, are entitled to the benefit of VA’s duty to assist. Consistently, we have so held. See Allday v. Brown, 7 Vet.App. 517, 526 (1995); Littke v. Derwinski, 1 Vet.App. 90, 91-92 (1990); Murphy v. Derwinski, 1 Vet.App. 78, 82 (1990); Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990); see also Elkins v. West, 12 Vet.App. 209 (1999)(en banc); Schroeder v. Brown, 6 Vet.App. 220 (1994); Grottveit v. Brown, 5 Vet.App. 91 (1993). In Grivois v. Brown, 6 Vet.App. 136, 139 (1994), we specifically held: Section 5107(a) of title 38 unequivocally places an initial burden on a claimant to produce evidence that the claim is well grounded or, as we have held, is plausible. See 38 U.S.C.[ ] § 5107(a) (1991); Grottveit [, 5 Vet.App. at 92]; Tirpak v. Derwinski, 2 Vet.App. 609, 610-11 (1992). This statutory prerequisite reflects a policy that implausible claims should not consume the limited resources of the VA and force into even greater backlog and delay those claims which — as well grounded — require adjudication. This policy is starkly clear when one reads the specific reiteration of that requirement in § 5107(b) of title 38. 38 U.S.C.[ ] § 5107(b) (1991).... Attentiveness to this threshold issue is, by law, not only for the Board but for the initial adjudicators, for it is their duty to avoid adjudicating implausible claims at the expense of delaying well-grounded ones. In Epps v. Gober, 126 F.3d 1464, 1467 (Fed.Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 2348, 141 L.Ed.2d 718 (1998), the Federal Circuit expressly upheld our interpretation of section 5107(a) and the “chronological relationship” it establishes. In so doing, it rejected the appellant’s argument that the Secretary’s duty" }, { "docid": "22787114", "title": "", "text": "and of a nexus between the in-service injury or disease and the current disability (medical evidence). Id. at 506 (citations omitted). Caluza did not change the standard for assessing these elements, quoting Murphy on this point. See id. at 504. Similarly, in Robinette (decided after Caluza), the Court of Appeals for Veterans Claims stated to be well grounded a claim need not be supported by evidence sufficient for the claim to be granted. Rather, the law establishes only a preliminary threshold of plausibility with enough of an eviden-tiary basis to show that the claim is capable of substantiation (if it is not meritorious when initially presented). 8 Vet.App. at 76. The Court of Appeals for Veterans Claims went on to state “[t]he threshold of plausibility to make a claim well grounded ‘is rather low.’ ” Id. (quoting White v. Derwinski, 1 Vet.App. 519, 521 (1991)). When the decision of the Court of Appeals for Veterans Claims in Epps was reviewed by this court, we approved both the three element evidentiary test of Calu-za and the threshold standard of Murphy, as explicated by the Court of Appeals for Veterans Claims. Thus, the standard of proof affirmed in Epps emphasizes that a well grounded claim need only be “plausible” or “capable of substantiation,” and that “[s]uch a claim need not be conclusive but only possible.” 126 F.3d at 1468. The DVA also has recognized that the evidentiary threshold for a well grounded claim (and hence the standard for triggering its duty to assist) is low. Its current regulations indicate an intent to assist veterans in developing their claims as much as possible before deciding whether the claims are well grounded, and the DVA has frequently provided at least some assistance to claimants whose claims had not yet been deemed well grounded. See 38 C.F.R. §§ 3.103(a), 3.159; see also VA Adjudication Manual M21-1, pt. III, ch. 2, para. 1.03.a (Feb. 23, 1996) (“Before a decision is made about a claim being well grounded, it will be fully developed.”). This approach accords the well grounded claim requirement its proper place, and puts the" }, { "docid": "2712335", "title": "", "text": "to conclude that the Board should have considered whether the appellant’s claim was “incomplete,” and thus, whether the time limit in which he was required could have been extended for “good cause shown.” See 38 C.F.R. § 21.3032(b)(3) (1997) (“When a claim is incomplete, time limits within which a claimant or beneficiary is required to complete the claim through the submission of evidence, documents or other information may be extended for good cause shown.”). Even though the appellant had raised what the Board considered equitable arguments, the Board did not discuss whether good cause was shown to justify the extension of the appellant’s time to submit his enrollment certificates, or even cite that provision of § 21.3032(b)(3) in its decision. We need not decide today, and express no opinion as to whether the time limit should have been extended, that good cause was shown, or that, as the appellant contended, § 21.3032(b)(3) was even applicable to the appellant’s claim. The facts of this case, including VA’s delay in adjudicating the service connection claim, certainly give rise to the potential applicability of that subsection and, as the Board acknowledged, the appellant had raised equitable arguments in support of his contention that he should be entitled to benefits for the period between September 1992 and April 1994. Thus, on its face, the Board’s decision appears to be lacking an adequate statement of reasons or bases for its rejection of his equitable argument. See 38 U.S.C. § § 7104(d); Gilbert v. Derwinski 1 Vet.App. 49, 56-57 (1990) (Board is required to articulate reasons and bases for its decision sufficient for the claimant to understand the agency’s decision and the precise basis for that decision and to facilitate judicial review); cf. Schroeder v. West, 212 F.3d 1265 (Fed.Cir.2000) (“[Ojnce a veteran has properly made out a well-grounded claim ... the agency’s duty to assist pursuant to section 5107(a) ... attaches to the investigation of all possible in-service causes of that current disability, including those unknown to the veteran.”). Accordingly, we hold that the Secretary has not met his burden, in the EAJA context, of" }, { "docid": "9328532", "title": "", "text": "§ 3.103(a) since July 18, 1972. See 38 C.F.R. § 3.103(a) (1987) (“It is the obligation of [the VA] to assist a claimant in developing the facts pertinent to his [or her] claim.... ”). Once a claimant has submitted a well-grounded claim to the RO, the burden shifts to the Secretary to “assist the claimant in developing facts pertinent to the claim,” 38 U.S.C. § 5107(a) (1994), and “to make all possible efforts to obtain and assess records relevant to an evaluation of the disability,” Schafrath v. Derwinski, 1 Vet.App. 589, 594 (1991) (emphasis added). “A well[-]grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of [section 5107(a)].” Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Reasonable efforts by the VA to obtain records regarding medical history from other Federal departments or agencies are an important part of the VA’s affirmative duties under 38 U.S.C. § 5107(a). See Thurber v. Brown, 5 Vet.App. 119, 124-25 (1993) (citing Murphy, 1 Vet.App. at 82) (stating that duty to assist includes obtaining any relevant military, VA, or other government records, and with appellant’s cooperation, private medical, hospital, employment, or other civilian records). The Court of Appeals for Veterans Claims has also held that the claimant does not always need to make a specific request that the VA procure pertinent private medical records. See Ivey v. Derwinski, 2 Vet.App. 320, 322-23 (1992). The duty to assist may arise when a claimant simply refers to the pertinent private medical examinations or treatments without making a specific request. See id. The VA has substantively defined its obligation to obtain SMRs in its VA Adjudication Procedure Manual M21-1. The VA has recognized that the duty to assist is not satisfied where records are not obtained after one request and therefore re quires RO adjudicators to make a supplemental request. See VA Adjudication Procedure Manual M21-1, Part VI, ¶ 6.04(b) (1972) (“When partial records only are received and the missing records are required for" }, { "docid": "2712336", "title": "", "text": "rise to the potential applicability of that subsection and, as the Board acknowledged, the appellant had raised equitable arguments in support of his contention that he should be entitled to benefits for the period between September 1992 and April 1994. Thus, on its face, the Board’s decision appears to be lacking an adequate statement of reasons or bases for its rejection of his equitable argument. See 38 U.S.C. § § 7104(d); Gilbert v. Derwinski 1 Vet.App. 49, 56-57 (1990) (Board is required to articulate reasons and bases for its decision sufficient for the claimant to understand the agency’s decision and the precise basis for that decision and to facilitate judicial review); cf. Schroeder v. West, 212 F.3d 1265 (Fed.Cir.2000) (“[Ojnce a veteran has properly made out a well-grounded claim ... the agency’s duty to assist pursuant to section 5107(a) ... attaches to the investigation of all possible in-service causes of that current disability, including those unknown to the veteran.”). Accordingly, we hold that the Secretary has not met his burden, in the EAJA context, of demonstrating that the Board’s failure to address these questions was substantially justified. Before this Court, the appellant argues that § 21.3032(b)(3)— specifically incorporates what the BVA described as “equitable principles” into the legal framework governing the perfection of claims for education benefits. Yet, inexplicably, the Board determined that it could not even reach the issue of whether [the ajppellant’s delay in submitting the required certificates of school enrollment should be excused. As a result, there is no discussion of the issue for appellate review. Notwithstanding, [the ajppellant argues that he established good cause in his notice of disagreement, when he correctly stated that the delay in the submission of the certificates of school enrollment had been caused by the VA’s delay in adjudicating the issue of service connection for the cause of the veteran’s death. [The ajppellant also correctly noted that the VA never advised him to keep submitting certificates of school enrollment. The BVA did not contest these matters in its decision. Rather, the Board acknowledged the equities surrounding the case, but denied retroactive" }, { "docid": "16956515", "title": "", "text": "he submitted that supports a finding of nexus to service is his own testimony, and evidence of nexus cannot be provided by lay testimony because “lay persons are not competent to offer medical opinions”. Grottveit, supra; see also Meyer v. Brown, 9 Vet.App. 425, 429 (1996); Edenfield v. Brown, 8 Vet.App. 384, 388 (1995) (en banc); Espiritu, supra; Grivois, supra. Furthermore, the Court finds that the veteran, contrary to his contentions, has not provided evidence of continuity of symptoma-tology under 38 C.F.R. § 3.303(b). See Savage, 10 Vet.App. at 498. His statements that his knee “hurts whenever I put weight [on it]” and that his injuries prevent him from holding “any good jobs” (R. at 80) do not support a finding of continuity of symptoma-tology; as to the former, it describes only his current condition and, as to the latter, it also describes only his current condition and, moreover, is too vague to relate his current symptoms to his prior symptoms or to his period of service or any applicable presumption period. See Savage, supra. Nor is there any medical evidence linking the claimed continuous symptoms to a current disability. Ibid. Accordingly, the veteran has not presented competent evidence connecting any current disability he may have to his period of service, and the Court therefore holds, on de novo review, that his claim for service connection is not well grounded. B. Duty to Assist Pursuant to 38 U.S.C. § 5107(a), once a claimant has submitted a well-grounded claim, the Secretary is required to assist that claimant in developing the- facts pertinent to the claim. See 38 C.F.R. § 3.159 (1997); Epps, 126 F.3d at 1469; Littke v. Derwinski, 1 Vet.App. 90, 91-92 (1990). Where the record does not adequately reveal the current state of the claimant’s disability and the claim is well grounded, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination. See Suttmann v. Brown, 5 Vet.App. 127, 138 (1993); Green (Victor) v. Derwinski, 1 Vet.App. 121, 124 (1991). “If a diagnosis is not supported by the findings on the examination report or" }, { "docid": "12394733", "title": "", "text": "3.103 (1996), which, according to Epps, embody the DVA’s long-standing practice of providing unconditional assistance to veterans in claim development, and which clarify the meaning and impact of the term “well grounded claim.” Epps also notes that the Court of Veterans Appeals’ interpretation of § 5107(a) produces an anomalous result, because only those claimants who do not need DVA assistance (ie., those with “well grounded” claims) would be entitled to DVA assistance. The DVA argues that the Court of Veterans Appeals’ construction of § 5107 is correct, that DVA assistance in claim development is conditional upon the submission of a “well grounded” claim. The DVA notes that the phrase “such a claimant” in the last sentence of § 5107(a) (as quoted above) refers to a claimant who has met the threshold of submitting a “well grounded” claim. The DVA also notes that the structure of § 5107 makes it clear that the claimant’s initial burden to submit a “well grounded” claim under § 5107(a) is separate from the standards governing the ultimate determination of claim allowability under § 5107(b). The DVA further notes that the legislative history of § 5107 does not clearly support Epps’s construction and, if anything, supports the DVA’s construction. We agree with the DVA and conclude that the court did not err in its interpretation of § 5107(a). The first sentence of § 5107(a) specifies that a claimant “shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded.” As noted by the court, a “well grounded” claim is: [A] plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § 5107(a). For a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in[-]service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service [disease or injury] and the current" }, { "docid": "1527050", "title": "", "text": "197. In a statement dated March 1996, his service organization representative conceded that “the evidence ... does not indicate that the veteran was exposed to loud noises or acoustic trauma. Available evidence does indicate [that] over a number of years he had a gradual development of a hearing loss[;] however!,] no substantiation of evidence has been submitted to support the veteran’s contention.” R. at 426. In the October 24, 1996, BVA decision here on appeal, the Board denied the veteran’s hearing-loss claim as not well grounded. R. at 8. The decision indicated that there was no competent medical opinion that showed an etiological relationship between his current hearing loss and a disease or acoustic trauma that occurred on active duty or while he was in the Air National Guard. Ibid. II. Analysis “[A] person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded.” 38 U.S.C. § 5107(a). A well-grounded claim is “a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of [section 5107(a) ].” Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Generally, for a service-connection claim to be well grounded a claimant must submit evidence of each of the following: (1) Medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the asserted in-service injury or disease and the current disability. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd. per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Elkins v. West, 12 Vet.App. 209, 213 (1999) (en banc) (citing Caluza, supra, and Epps v. Gober, 126 F.3d 1464, 1468 (Fed.Cir.1997) (expressly adopting definition of well-grounded claim set forth in Caluza, supra), cert. denied sub nom. Epps v. West, 524 U.S. 940, 118 S.Ct. 2348, 141 L.Ed.2d" }, { "docid": "6778256", "title": "", "text": "An autopsy performed on the body revealed that he was of “slender build, poorly developed, and poorly nourished.” In September 1994, the appellant, as the veteran’s surviving spouse, filed a claim for DIC. The VARO denied her claim for DIC on the grounds that his death was not service connected. Subsequently, she appealed this decision to the Board. In her appeal, she claimed that many of the conditions which afflicted her husband in his later years resulted from poor nutrition and privation during captivity. In addition, she submitted a statement from Dr. James T. Smith, the veteran’s treating physician, which stated: “Mr. Bloom was a long standing patient of mine who suffered from chronic obstructive lung disease and recurrent episodes of pneumonia, which eventually took his life. In my opinion, his time as a prisoner of war could have precipitated the initial development of his lung condition.” II. ANALYSIS DIC is paid to the surviving spouse, children, or parents of a qualifying veteran who dies from a service-connected disability. 38 U.S.C. § 1310. For such a death to considered service connected, it must result from a disability incurred or aggravated in the line of duty. As with any other type of claim, a claimant seeking DIC benefits has the initial burden of showing that the claim is well grounded. 38 U.S.C. § 5107; see Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). For a claim to be well grounded, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the in-service injury or disease and the current disability. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Epps v. Brown, 9 Vet.App. 341, 343-44 (1996), aff'd sub nom. Epps v. Gober, 126 F.3d 1464, 1468 (Fed.Cir.1997), cert. denied sub nom. Epps v. West, — U.S. -, 118 S.Ct. 2348, 141 L.Ed.2d 718 (1998). “[W]here the determinative issue involves medical causation or medical diagnosis, competent" }, { "docid": "6869747", "title": "", "text": "grounded or, as we have held, is plausible. See 38 U.S.C.[ ] § 5107(a) (1991); Grottveit [, 5 Vet.App. at 92]; Tirpak v. Derwinski, 2 Vet.App. 609, 610-11 (1992). This statutory prerequisite reflects a policy that implausible claims should not consume the limited resources of the VA and force into even greater backlog and delay those claims which — as well grounded — require adjudication. This policy is starkly clear when one reads the specific reiteration of that requirement in § 5107(b) of title 38. 38 U.S.C.[ ] § 5107(b) (1991).... Attentiveness to this threshold issue is, by law, not only for the Board but for the initial adjudicators, for it is their duty to avoid adjudicating implausible claims at the expense of delaying well-grounded ones. In Epps v. Gober, 126 F.3d 1464, 1467 (Fed.Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 2348, 141 L.Ed.2d 718 (1998), the Federal Circuit expressly upheld our interpretation of section 5107(a) and the “chronological relationship” it establishes. In so doing, it rejected the appellant’s argument that the Secretary’s duty to assist is not conditional upon the submission of a well-grounded claim. Upon reviewing the statutory provision, the Federal Circuit construed the “such a claimant” language of section 5107(a) as having its antecedent in the preceding sentence. It also found that the last sentence of section 5107(b), which reprises the “burden” of section 5107(a), constituted support for the proposition that the duty to present a well-grounded claim is the claimant’s alone. The Federal Circuit dismissed the appellant’s argument that the legislative history of section 5107 indicates that Congress intended to codify 38 C.F.R. §§ 3.102 and 3.103, agency regulations which he suggested represented the longstanding practice on the part of VA to provide unconditional assistance. Id. at 1467-68. Finding the legislative history not to bear directly on the statutory construction in question, the Federal Circuit held “that § 5107(a) requires a claimant to submit and establish a well grounded claim before the [ ]VA is required to provide assistance to a claimant in developing the facts underlying his or her claim.” Id. at 1469. In" }, { "docid": "23585891", "title": "", "text": "C.F.R. § 3.312 (1998). A claim for section 1310 disability and indemnity compensation (DIC) is treated as a new claim, regardless of the status of adjudications concerning service-connected-disability claims brought by the veteran (see 38 C.F.R. § 20.1106 (1998); Zevalkink v. Brown, 6 Vet.App. 483, 491 (1994), aff'd, 102 F.3d 1236 (Fed.Cir.1996)); therefore, a DIC claimant must submit evidence sufficient to make the claim well grounded under 38 U.S.C. § 5107(a). As a general matter, service connection for VA disability compensation purposes will be awarded to a veteran who served on active duty during a period of war, or during a post-1946 peacetime period, for any disease or injury that was incurred in or aggravated by a veteran's active service or for certain diseases that were initially manifested, generally to a degree of 10% or more, within a specified presumption period after separation from service. See 38 U.S.C. §§ 1110, 1112(a), 1116, 1131, 1133(a), 1137; 38 C.F.R. §§ 3.303(a), 3.306, 3.307, 3.309 (1998). As to the well groundedness of a claim, section 5107(a) provides in pertinent part: \"[A] person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded.” The Court has defined a well-grounded claim as follows: \"[A] plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of [section 5107(a)].” Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). A well-grounded service-connection claim generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service injury or disease and a current, disability. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Epps v. Gober, 126 F.3d 1464, 1468 (Fed.Cir.1997) (expressly adopting definition of well-grounded claim set forth in" }, { "docid": "1527051", "title": "", "text": "A well-grounded claim is “a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of [section 5107(a) ].” Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Generally, for a service-connection claim to be well grounded a claimant must submit evidence of each of the following: (1) Medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the asserted in-service injury or disease and the current disability. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd. per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Elkins v. West, 12 Vet.App. 209, 213 (1999) (en banc) (citing Caluza, supra, and Epps v. Gober, 126 F.3d 1464, 1468 (Fed.Cir.1997) (expressly adopting definition of well-grounded claim set forth in Caluza, supra), cert. denied sub nom. Epps v. West, 524 U.S. 940, 118 S.Ct. 2348, 141 L.Ed.2d 718 (1998) (mem.)). Alternatively, either or both of the second and third Cahiza elements can be satisfied, under 38 C.F.R. § 3.303(b) (1998), by the submission of (a) evidence that a condition was “noted” during service or during an applicable presumption period; (b) evidence showing postservice continuity of sympto-matology; and (e) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Savage v. Gober, 10 Vet.App. 488, 495-97 (1997). The credibility of the evidence presented in support of a claim is generally presumed when determining whether it is well grounded. See Elkins, 12 Vet.App. at 219 (citing Robinette v. Brown, 8 Vet.App. 69, 75-76 (1995)). The determination whether a claim is well grounded is subject to de novo review by this Court. See Robinette, 8 Vet.App. at 74. A. Right-Knee Condition At the outset, as to evidence of in-service incurrence or aggravation (the second requirement of Caluza, supra) of a knee problem, the veteran’s June 1970 discharge examination report does indicate complaints of knee problems and" }, { "docid": "2867649", "title": "", "text": "of a nexus between the in-service injury or disease and the current disability (medical evidence). Id. at 506 (citations omitted). Caluza did not change the standard for assessing these elements, quoting Murphy on this point. See id. at 504. Similarly, in Robinette (decided after Caluza), the Court of Appeals for Veterans Claims stated to be well grounded a claim need not be supported by evidence sufficient for the claim to be granted. ' Rather, the law establishes only a preliminary threshold of plausibility with enough of an eviden-tiary basis to show that the claim is capable of substantiation (if it is not meritorious when initially presented). 8 Vet.App. at 76. The Court of Appeals for Veterans Claims went on to state “[t]he threshold of plausibility to make a claim well grounded ‘is rather low.’ ” Id. (quoting White v. Derwinski, 1 Vet.App. 519, 521 (1991)). When the decision of the Court of Appeals for Veterans Claims in Epps was reviewed by this court, we approved both the three element evidentiary test of Calu-za and the threshold standard of Murphy, as explicated by the Court of Appeals for Veterans Claims. Thus, the standard of proof affirmed in Epps emphasizes that a well grounded claim need only be “plausible” or “capable of substantiation,” and that “[s]uch a claim need not be conclusive but only possible.” 126 F.3d at 1468. The DVA also has recognized that the evidentiary threshold for a well grounded claim (and hence the standard for triggering its duty to assist) is low. Its current regulations indicate an intent to assist veterans in developing then* claims as much as possible before deciding whether the claims are well grounded, and the DVA has frequently provided at least some assistance to claimants whose claims had not yet been deemed well grounded. See 38 C.F.R. §§ 3.103(a), 3.159; see also VA Adjudication Manual M21-1, pt. III, ch. 2, para. 1.03.a (Feb. 23,1996) (“Before a decision is made about a claim being well grounded, it will be fully developed.”). This approach accords the well grounded claim requirement its proper place, and puts the emphasis" }, { "docid": "12394732", "title": "", "text": "of record in a case before the Department [of Veterans Affairs] with respect to benefits under laws administered by the Secretary, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. Nothing in this subsection shall be construed as shifting from the claimant to the Secretary the burden specified in subsection (a) of this section. 38 U.S.C. § 5107 (1994). As previously noted, Epps argues that DVA assistance under § 5107(a) is not conditioned upon the submission of a “well grounded” claim. According to Epps, whether a claim is “well grounded” is relevant only to the question whether benefits will ultimately be allowed after consideration of all the evidence, including that which the DVA is unconditionally obligated to help develop. In support of his argument, Epps points to the legislative history of § 5107 and argues that Congress intended to codify regulations 38 C.F.R. §§ 3.102, 3.103 (1996), which, according to Epps, embody the DVA’s long-standing practice of providing unconditional assistance to veterans in claim development, and which clarify the meaning and impact of the term “well grounded claim.” Epps also notes that the Court of Veterans Appeals’ interpretation of § 5107(a) produces an anomalous result, because only those claimants who do not need DVA assistance (ie., those with “well grounded” claims) would be entitled to DVA assistance. The DVA argues that the Court of Veterans Appeals’ construction of § 5107 is correct, that DVA assistance in claim development is conditional upon the submission of a “well grounded” claim. The DVA notes that the phrase “such a claimant” in the last sentence of § 5107(a) (as quoted above) refers to a claimant who has met the threshold of submitting a “well grounded” claim. The DVA also notes that the structure of § 5107 makes it clear that the claimant’s initial burden to submit a “well grounded” claim under § 5107(a) is separate from the standards governing the ultimate determination of claim" }, { "docid": "22435877", "title": "", "text": "111 S.Ct. 2166, 115 L.Ed.2d 96 (1991) (internal quotation marks omitted). Although we follow the parties in using the traditional claim preclusion criteria, the result is the same under the Astoria analysis. See infra, Part II.A.2. .Although the scope of this duty recently has been in flux, these differences are immaterial for purposes of this appeal. Compare Epps v. Gober, 126 F.3d 1464, 1468-69 (Fed.Cir. 1997) (holding that a claimant for veterans’ disability benefits must submit and establish a \"well grounded” claim before the VA is required to provide assistance), with Veterans Claims Assistance Act of 2000, Pub.L. No. 106-475, § 4, 114 Stat.2096 (2000) (amending 38 U.S.C. § 5107(a) to remove \"well grounded” language); see also Bernklau v. Principi, 291 F.3d 795, 803 (Fed.Cir.2002) (recognizing the overruling of Epps). . This conclusion is reinforced by the separate administrative procedures set up by the VA to deal with FTCA claims. Compare 38 C.F.R. § 14.600-605 (FTCA procedures), with 38 C.F.R. § 3.100-.115 (procedures for disability benefit claims). . Section 511 provides, with certain exceptions, that decisions related to the provision of veterans' benefits \"may not be reviewed by any other official or by any court, whether by an action in the nature of mandamus or otherwise.” 38 U.S.C. § 511. . Section 7292 provides, in relevant part: The United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction to review and decide any challenge to the validity of any statute or regulation or any interpretation thereof brought under this section, and to interpret constitutional and statutory provisions, to the extent presented and necessary to the decision. 38 U.S.C. § 7292(c). .See, e.g., 38 U.S.C. § 5107(a) (1994) (requiring the VA to assist claimants); Hodge v. West, 155 F.3d 1356, 1362 (Fed.Cir.1998) (\"[The Federal Circuit] and the Supreme Court both have long recognized that the character of the veterans' benefits statutes is strongly and uniquely proclaimant”); 38 C.F.R. § 3.102 (\"It is the defined and consistently applied policy of the [VA] to administer the law under a broad interpretation ....\"). . This rationale was advanced by the government" }, { "docid": "761901", "title": "", "text": "a theory of secondary service connection is separate and distinct from a claim for disability benefits on a theory of direct service connection for that same disability. 5 Vet.App. 237, 239 (1993). As explained below, the Federal Circuit overruled this holding. Under the no longer existent well-grounded-claim requirement, VA’s duty to assist was not triggered until some evidence was presented in support of each element of the claim. See Morton v. West, 12 Vet.App. 477, 486 (1999). It was under the well-grounded-claim requirement that this Court endorsed a theory-by-theory concept of what constitutes a claim. In Schroeder v. West, upon which we based our decision in Bingham, the Federal Circuit repudiated the theory-equals-claim concept and held that, where a veteran sought benefits for an eye condition and his claim was well grounded based on in-service exposure to Agent Orange, VA’s duty to assist was triggered and VA had an obligation to explore all legal theories, including those unknown to the veteran, by which a veteran might be awarded service connection for such disability. 212 F.3d 1265, 1269-71 (Fed.Cir.2000). Schroeder, like the Federal Circuit’s subsequent decision affirming our decision in Bingham, repudiates the each-theory-equals-a-distinct-claim concept. Although the question in Perman arose in the context of whether a Notice of Disagreement had been timely filed, and that opinion has never been explicitly overruled, we conclude that in its decision in Schroeder and in affirming our decision in Bingham, the Federal Circuit overruled Perman sub silencio. The proposition that separate theories in support of a claim for benefits for a particular disability equate to separate claims for benefits for that disability is no longer the law. See Bingham, 421 F.3d at 1349; see also Roebuck, 20 Vet.App. at 313. Here, Mr. Robinson, who has been represented by attorney Cameron since the submission of his original Notice of Disagreement in November 1999, has pursued YA benefits for heart disease and a thyroid disability only on a secondary basis — that is, on the theory that those conditions are attributable to his service-connected peptic ulcer disease. In his brief in this appeal, Mr. Robinson contends," } ]

[ { "docid": "22665286", "title": "", "text": "law, or merely to bad business judgment. It applies, among other things, where the mistake alleged is the refusal to assert a seemingly clear cause of action, or the compromise of it. United Copper Securities Co. v. Amalgamated Copper Co., 244 U. S. 261, 263-264. If a stockholder could compel the officers to enforce every legal right, courts, instead of chosen officers, would be the arbiters of the corporation’s fate. In Hawes v. Oakland, 104 U. S. 450, 462, a. common stockholder sought to enjoin the Contra Costa Waterworks Company from permitting the City of Oakland to take without compensation water in excess of that to which it was legally entitled. This Court, in affirming dismissal of the bill, said: “It may be the exercise of the highest wisdom to let the city use the water in the manner complained of. The directors are better' able to. act understanding^ on this subject than a stockholder residing in New York. The great body of the stockholders residing in Oakland or other places in California may take this view of it, and be content to abide by the action of their directors. If this be so, is a bitter litigation with the city to be conducted by one stockholder for the corporation and all other stockholders, because the amount of his dividends is diminished?” In Corbus v. Alaska Treadwell Gold Mining Co., 187 U. S. 455, 463, a suit by a common stockholder to enjoin payment of an Alaska license tax alleged to be illegal, the Court said: “The directors represent all the stockholders and are presumed to act honestly and. according to their best judgment for the interests of all. Their judgment as to any matter lawfully confided to their discretion may not lightly be challenged by any stockholder or at his instance submitted for review to a court of equity. The directors may sometimes properly waive a legal right vested in the corporation in the belief that its best interests will be promoted by not insisting on such right. They may regard the expense of enforcing the right or the" } ]

[ { "docid": "9577166", "title": "", "text": "receivership, The Trust Company, for a considerable time was administered by a receiver, whose appointment was a matter of public record. The bill sets forth no demand made upon the receiver to sue the .old directors during the period of the receivership, although obviously the receiver was the proper party to have attacked the illegal acts, if any, performed by the old directors. Cf. Klein v. Peter, 286 F. 362 (C.C.A.9). The prerequisites for bringing a derivative action under Equity Rule 27 are laid down in the leading case of Hawes v. Oakland, 104 U.S. 450, 26 L.Ed. 827. The court, at page 460 of 104 U.S., 26 L.Ed. 827, states: “ * * * he [the plaintiff] should show, to the satisfaction of the court, that he has exhausted all the means within his reach to obtain, within the corporation itself, the redress of his grievances, or action in conformity to his wishes. He must make an earnest, not a simulated effort, with the managing body of the corporation, to induce remedial action on their part, and this must be made apparent to the court. If time permits, or has permitted, he must show, if he fails with the directors, that he has made an honest effort to obtain action by the stockholders as a body, in the matter of which he complains. And he must show a case, if. this is not done, where it could not be done, or it was not reasonable to require it. “The efforts to induce such action * * * should be stated with particularity.” In that case, as here, no reason was given why the directors declined to act, and there was no allegation that an effort had been made to ascertain the opinion of the stockholders or to obtain action from them. It was held that such omissions are fatal to the bill. In the Hawes Case it was positively averred that the directors had been requested to take action. We bear in mind the recent decision of the Supreme Court that where an action complained of is illegal, as" }, { "docid": "10498409", "title": "", "text": "this affidavit in connection with the motion to dismiss. The orderly administration of justice was clearly served by full inquiry into the question of appellants’ capacity to sue before examination of the merits. We think all available evidence which bore on such preliminary question, including the affidavit, was a proper subject of examination. Cf. Gallup v. Caldwell, 3 Cir., 120 F.2d 90, 92, 93; Rule 43(e), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c; Central Mexico Light & Power Co. v. Munch, 2 Cir., 116 F.2d 85, 87. Considering the complaint independently, however, we think that the order of dismissal is clearly correct. The complaint does not make the averments necessary to enable a stockholder to sue on behalf of the corporation. The rule that one who seeks to maintain a derivative action must exhaust every remedy within the corporation before suing on causes of action which in the first instance should be asserted by the corporation is based upon sound reason and has been repeatedly reaffirmed. Long v. Stites, 6 Cir., 88 F.2d 554 certiorari denied 301 U.S. 706, 57 S.Ct. 939, 81 L.Ed. 1360; Wales v. Jacobs, 6 Cir., 104 F.2d 264, 267, certiorari denied 308 U.S. 599, 60 S.Ct. 130, 84 L.Ed. 501; Lucking v. Delano, supra. When a corporation is in receivership the demand must be made upon the receiver, and the party seeking to avail himself of the derivative action must “make an earnest, not a simulated effort to induce remedial action. The efforts to induce such action * * * should be stated with particularity.” Hawes v. Oakland, 104 U.S. 450, 461, 26 L.Ed. 827. This rule was carried over into Equity Rule 27, and is again declared in Rule 23(b) of Federal Rules of Civil Procedure. The complaint, apart from alleging a single demand, does not show that earnest efforts have been made to induce action on the part of the receiver. The uncontroverted fact that the appellants failed to answer the receiver’s letter indicates that an earnest effort was not made. The complaint avers no fact justifying the conclusion that" }, { "docid": "22155117", "title": "", "text": "* * * • the complaint * * * shall allege (1) that the plaintiff was a shareholder * * * at the time of the transaction of which he complains or that his share * * * thereafter devolved on him by operation of law. * * * It is uncontroverted that appellee is not now nor ever was a stockholder of any of the 61 funds he wishes to represent as a class representative in his derivative action. Thus, he has not complied with this provision’s unambiguous requirement — amounting to a legal principle — that one who does not own shares in a corporation is not qualified to bring a derivative action in his behalf. The timber of sound reason forms the conceptual underpinning of the rule requiring stock ownership in a corporation as the prerequisite for bringing a derivative action in its behalf. Only by virtue of the shareholder’s interest, which has been described as “a proprietary interest in the corporate enterprise which is subject to injury through breaches of trust or duty on the part of the directors,” Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 321, 56 S.Ct. 466, 471, 80 L.Ed. 688 (1936), does equity permit him “to step into the corporation shoes and seek in its right the restitution he could not demand in his own.” Standing is justified only by this proprietary interest created by the stockholder relationship and the possible indirect benefits the nominal plaintiff may acquire qua stockholder of the corporation which is the real party in interest. Without this relationship, there •can be no standing, “no right in himself to prosecute this suit,” Hawes v. Oakland (Hawes v. Contra Costa Water Co.), 104 U.S. 450, 462, 26 L.Ed. 827; Venner v. Great Northern Railway, 209 U.S. 24, 34, 28 S.Ct. 328, 52 L.Ed. 666 (1908). Moreover, because it appears that Rule 23.1 was enacted for the purpose of treating stockholder derivative actions independently of Rule 23, we are particularly unwilling to permit appellee to combine the provisions of these two rules. As Professor Wright has pointed out: [I]n" }, { "docid": "7537096", "title": "", "text": "acting in good faith, merely one that it did not respond to plaintiffs’ demand. By the time plaintiffs’ suit was dismissed, the FDIC had brought its own against the same former bank officials that plaintiffs sought to sue on behalf of the corporation. To establish his right to bring a derivative action, a shareholder must “show, to the satisfaction of the court, that he has exhausted all the means within his reach to obtain” the action he desires. Hawes v. Contra Costa Water Co., 104 U.S. 450, 460-61, 14 Otto 450, 460-61, 26 L.Ed. 827 (1882); see Galef v. Alexander, 615 F.2d 51, 59 (2d Cir.1980) (Rule 23.1 “is essentially a requirement that a stockholder exhaust his intracorporate remedies before bringing a derivative action”). The demand required by Rule 23.1 “must be more than pro forma; the plaintiff must make a serious request ... and specify the nature of the activity in question.” Smachlo v. Birkelo, 576 F.Supp. 1439, 1443 (D.Del.1983). Stated otherwise, the shareholder “must make an earnest, not a simulated effort ... to induce remedial action.” Hawes, 104 U.S. at 461, 14 Otto at 450. This requirement is consistent with the general principle that “the responsibility for determining whether or not a corporation shall enforce in the courts a cause of action for damages is, like other business questions, ordinarily a matter of internal management.” Landy v. FDIC, 486 F.2d 139, 146 (3d Cir.1973). Courts have required more than a simple demand that the corporation file suit; they have also required plaintiffs to make reasonable efforts to assist the corporation in initiating action. Thus, in Shlensky v. Dorsey, 574 F.2d 131 (3d Cir.1978), the court refused to allow a derivative action where the plaintiffs requested action against unidentified third parties. The court found this demand “completely lacking in the specificity which would give the directors a fair opportunity to initiate the action.” Id. at 141. Similarly, the First Circuit has stated that the directors must be “given full knowledge of the basis for the claim.” Halprin v. Babbitt, 303 F.2d 138, 141 (1st Cir.1962). In light of these" }, { "docid": "14890056", "title": "", "text": "No. 87-01682, Order (D.D.C. Feb. 12, 1988) [1988 WL 15189]. II. Analysis Rule 23.1 provides in pertinent part that parties bringing derivative actions to enforce a right of a corporation must “allege with particularity the efforts, if any, made by the plaintiff to obtain the action the plaintiff desires from the directors ... or ... [the reasons] for not making the effort.” In challenging the district court’s dismissal of his complaint, appellant raises several issues with regard to this requirement. First, does federal law or state law define the substantive contours of the demand requirement, and when as a substantive matter will demand be excused as futile? Second, are there certain circumstances — such as in the receivership context — where the demand requirement should be held per se inapplicable? And third, if the requirement does apply, what factual allegations are required by the Rule to satisfy the procedural requirement of “particularity” in pleading? We will deal with these issues in turn. A. The Substance of the Demand Requirement The requirement of the exhaustion of intracorporate remedies as a precondition to the commencement of a shareholder derivative suit originated in the English courts of equity. See, e.g., Foss v. Harbottle, 2 Hare 461, 67 Eng.Rep. 189 (V.Ch. 1843). In the United States, the Supreme Court first articulated the “demand requirement” for derivative actions in Hawes v. Oakland, 104 U.S. 450, 26 L.Ed. 827 (1882). There the Court required the shareholder-plaintiff to show to the satisfaction of the court that he has exhausted all the means within his reach to obtain, within the corporation itself, the redress of his grievances, or action in conformity to his wishes. He must make an earnest, not a simulated effort, with the managing body of the corporation, to induce remedial action on their part, and this must be made apparent to the court.... And he must show a case, if this is not done, where it could not be done, or it was not reasonable to require it. Id. at 460-61. The Court soon thereafter implemented its holding in Hawes through Equity Rule 94 (1882)," }, { "docid": "22869648", "title": "", "text": "While the court’s reference at this stage to a presumption may have been erroneous, we agree with the court’s result. For lawyers and judges accustomed to the liberalized “notice” pleading of the Federal Rules, F.R.Civ.P. 8, a brief review of the background of Rule 23.1 is in order. Rule 23.1 is not an ordinary, but an exceptional rule of pleading, serving a special purpose, and requiring a different judicial approach. Socially desirable as minority stockholders’ actions may be thought to be, see Emerson and Latchman, Shareholder Democracy ch. VIII (1954); Pomerantz v. Clark, D.Mass., 1951, 101 F.Supp. 341, 346, it is normally the directors, not the stockholders, who conduct the affairs of the company. Hence, to be allowed, sua sponte, to place himself in charge without first affording the directors the opportunity to occupy their normal status, a stockholder must show that his case is exceptional. His initial burden is to demonstrate why the directors are incapable of doing their duty, or as the Court has put it, to show that “the antagonism between the directory and the corporate interest ... be unmistakable.” Delaware & Hudson Co. v. Albany & Susquehanna R. R., 1909, 213 U.S. 435, 447, 29 S.Ct. 540, 543, 53 L.Ed. 862. This has long meant, as the Court stated in Hawes v. Oakland, 1881, 104 U.S. 450, 26 L.Ed. 827, cited in Delaware, that the “cause of failure [to induce corporate action] . . . should be stated with particularity.” 104 U.S. at 461, 26 L.Ed. 827. See also Wathen v. Jackson Oil & Refining Co., 1915, 235 U.S. 635, 639-640, 35 S.Ct. 225, 59 L.Ed. 395. Rule 23.1 — “The complaint shall also allege with particularity . the reasons for . . . not making the [demand]” — is thus the embodiment of a long-standing principle, or, as the Massachusetts court said in a parallel case, Bartlett v. New York, N.H. & H. R.R., 1915, 221 Mass. 530, at 538, 109 N.E. 452 at 456, “It is not a technical rule of pleading, but one of substantive right.” Whether the word “substantive” is exact, it" }, { "docid": "7537095", "title": "", "text": "against it, courts have been careful to regard the derivative suit, as an extraordinary remedy, available to the shareholder, as the corporation’s representative, only when there is “no other road to redress.” Note, “Demand on Directors and Shareholders as a Prerequisite to a Derivative Suit,” 73 Harv.L.Rev. 746, 748 (1960). Rule 23.1, Federal Rules of Civil Procedure, requires that such a complaint “allege with particularity the efforts, if any, made by the plaintiff to obtain the action he desires from the directors or comparable authority ... and the reasons for his failure to obtain the action or for not making the effort.” In this instance, plaintiffs allege merely that they made two demands on the FDIC in April and, when the FDIC failed to respond to their demands and without further contact, filed suit in June. In light of the requirements of Rule 23.1, we are justified in assuming that plaintiffs did no more in this respect than they allege they did. They make no claim that the FDIC refused to proceed or was not acting in good faith, merely one that it did not respond to plaintiffs’ demand. By the time plaintiffs’ suit was dismissed, the FDIC had brought its own against the same former bank officials that plaintiffs sought to sue on behalf of the corporation. To establish his right to bring a derivative action, a shareholder must “show, to the satisfaction of the court, that he has exhausted all the means within his reach to obtain” the action he desires. Hawes v. Contra Costa Water Co., 104 U.S. 450, 460-61, 14 Otto 450, 460-61, 26 L.Ed. 827 (1882); see Galef v. Alexander, 615 F.2d 51, 59 (2d Cir.1980) (Rule 23.1 “is essentially a requirement that a stockholder exhaust his intracorporate remedies before bringing a derivative action”). The demand required by Rule 23.1 “must be more than pro forma; the plaintiff must make a serious request ... and specify the nature of the activity in question.” Smachlo v. Birkelo, 576 F.Supp. 1439, 1443 (D.Del.1983). Stated otherwise, the shareholder “must make an earnest, not a simulated effort ... to" }, { "docid": "11432240", "title": "", "text": "of San Francisco. Blum v. Fleishhacker, D.C.. 21, F. Supp. 527. The bill alleged that Fleishhaeker’s nominees were Klinker, Thompson and Stock Farms. Reaffirmed in Huntington v. Palmer, 104 U.S. 482, 26 L.Ed. 833; Detroit v. Dean, 106 U.S. 537, 539-542, 1 S.Ct. 560, 27 L.Ed. 300; Quincy v. Steel, 120 U.S. 241, 244-249, 7 S.Ct. 520, 30 L.Ed. 624; Corbus v. Alaska Treadwell Gold Mining Co., 187 U.S. 455, 459-65, 23 S.Ct. 157, 47 L.Ed. 256; Stewart v. Washington & Alaska Steamship Co., 187 U.S. 466, 23 S.Ct. 161, 47 L.Ed. 261; Wathen v. Jackson Oil & Refining Co., 235 U.S. 635, 639-641, 35 S.Ct. 225, 59 L.Ed. 395; United Copper Securities Co. Anglo is a corporation. 12 U.S.C.A. § 24. As in Dodge v. Woolsey, 18 How. 331, 340-346, 15 L.Ed. 401. As in Doctor v. Harrington, 196 U.S. 579, 587-589, 25 S.Ct. 355, 49 L.Ed. 606. Such a ease arises where a board of directors is pursuing a course of action amounting, in law, to a breach of trust, and such course, if persisted in, will cause the corporation and its stockholders irremediable injury. Dodge v. Woolsey, supra; Greenwood v. Union Freight R. Co., 105 U.S. 13, 16, 26 L.Ed. 961; Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429, 553, 554, 15 S.Ct. 673, 39 L.Ed. 759; Smyth v. Ames, 169 U.S. 466, 515-518, 18 S.Ct. 418, 42 L.Ed. 819; Cotting v. Kansas City Stock Yards Co., 183 U.S. 79, 112, 113, 22 S.Ct. 30, 46 L.Ed. 92; Doctor v. Harrington, supra; Delaware & Hudson Co. v. Albany & Susquehanna R. Co., 213 U.S. 435, 445-453, 29 S.Ct. 540, 53 L.Ed. 862; Brushaber v. Union Pacific R. Co., 240 U.S. 1, 9, 10, 36 S.Ct. 236, 60 L.Ed. 493, L.R.A.1917D, 414, Ann.Cas.1917B, 713; Smith v. Kansas City Title Co., 255 U. S. 180, 200-202, 41 S.Ct. 243, 65 L.Ed. 577; Hill v. Wallace, 259 U.S. 44, 60-62, 42 S.Ct. 453, 66 L.Ed. 822; Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 318-323, 56 S.Ct. 466, 80 L.Ed. 688; Carter v. Carter Coal Co., 298 U.S." }, { "docid": "22869649", "title": "", "text": "directory and the corporate interest ... be unmistakable.” Delaware & Hudson Co. v. Albany & Susquehanna R. R., 1909, 213 U.S. 435, 447, 29 S.Ct. 540, 543, 53 L.Ed. 862. This has long meant, as the Court stated in Hawes v. Oakland, 1881, 104 U.S. 450, 26 L.Ed. 827, cited in Delaware, that the “cause of failure [to induce corporate action] . . . should be stated with particularity.” 104 U.S. at 461, 26 L.Ed. 827. See also Wathen v. Jackson Oil & Refining Co., 1915, 235 U.S. 635, 639-640, 35 S.Ct. 225, 59 L.Ed. 395. Rule 23.1 — “The complaint shall also allege with particularity . the reasons for . . . not making the [demand]” — is thus the embodiment of a long-standing principle, or, as the Massachusetts court said in a parallel case, Bartlett v. New York, N.H. & H. R.R., 1915, 221 Mass. 530, at 538, 109 N.E. 452 at 456, “It is not a technical rule of pleading, but one of substantive right.” Whether the word “substantive” is exact, it is clear that the “particularity” must appear in the pleading itself; the stockholder may not plead in general terms, hoping that, by discovery or otherwise, he can later establish a ease. Indeed, if the requirement could be met otherwise, it would be meaningless. Returning to our listing of plaintiff’s allegations, ante, we find that, (1) (demand would be futile) is merely a conclusion, not a reason; (2) (dates) does not purport to state a reason; (3) (domination and control) is, again, a statement of ultimate fact, not meeting the test of “particularity”; (4) and (5) are why, allegedly, the acts are wrongful; (6) advances nothing over (3), (4) and (5); (7) (all the named defendants conspired) insofar as it names individual director-defendants who are financially interested in the attacked transaction, fails to go far enough. We will group and discuss these allegations,' to the extent that they purport to be reasons for not making a demand, somewhat differently. 1. An allegation of domination and control, unsupported by underlying facts, does not satisfy the requirement of" }, { "docid": "9577162", "title": "", "text": "board of directors was elected. None of the present directors were directors of the company prior to the receivership. Appellants’ bill sets up a derivative cause of action for the benefit of the corporation, and prays for an accounting and other equitable relief against the directors of the original Trust Company upon the ground that they permitted the alleged illegal investments to be made, and also joins as defendants the directors of the re-organized Trust Company upon the ground that they failed and refused to sue the old directors in order to compel them to account for their alleged mismanagement. Appellants filed their amended and substituted bill on June 15, 1934, alleging compliance with Equity Rule 27 in the following terms: “6. Plaintiffs aver that a demand was made upon the new directors on January 25, 1934, to sue the old directors for the hereinafter set out acts of omission and commission. That, upon that date, they refused to sue as demanded. That on the 19th day of February, 1934, a registered letter was sent to the president and director explaining said demand and refusal. * * * That the plaintiffs are so-called minority stockholders and could not obtain relief through stockholders’ meetings.” Appellees filed a motion to require appellants to amend paragraph 6 so as specifically to state the manner in which the alleged demand upon the new directors was made, and this motion was granted. Counsel for appellants in open court refused to comply with the court’s order, and thereupon the cause of action was dismissed. Later, and within the time allowed for amending paragraph 6, appellants moved for permission to amend paragraph 7 of the hill to show that “it was a vain and useless act to demand of them [the present directors] again something which they had already considered and declined to do.” The amendment to proffered paragraph 7 reiterated that demand had been made upon the president, and stated that he represented that the present directors had previously considered suing the former directors and had declined so to do. Appellants further alleged upon information and" }, { "docid": "12330828", "title": "", "text": "The Supreme Court and, following it, the Courts of Appeals have repeatedly stated and applied the doctrine that a stockholder’s derivative action, whether involving corporate refusal to bring antitrust suits or some other controversial decision concerning the conduct of corporate affairs, can be maintained only if the stockholder shall allege and prove that the directors of the corporation are personally involved or interested in the alleged wrongdoing in a way calculated to impair their exercise of business judgment on behalf of the corporation, or that their refusal to sue reflects bad faith or breach of trust in some other way. Hawes v. City of Oakland, 1881, 104 U.S. 450, 26 L.Ed. 827; United Copper Securities Co. v. Amalgamated Copper Co., 1917, 244 U.S. 261, 37 S.Ct. 509, 61 L.Ed. 1119; Coast v. Hunt Oil Co., 5th Cir. 1952, 195 F.2d 870, cert. denied, 344 U.S. 836, 73 S.Ct. 46, 97 L.Ed. 651; Swanson v. Traer, 7th Cir. 1957, 249 F.2d 854; Stadin v. Union Electric Co., 8th Cir. 1962, 309 F.2d 912, cert. denied, 373 U.S. 915, 83 S.Ct. 1298, 10 L.Ed.2d 415; and see our elaborate discussion of this line of cases in Rogers v. American Can Co., 3 Cir. 1962, 305 F.2d 297. Prevailing doctrine in the state courts is to the same effect. See 13 Fletcher, Cyclopedia of the Law of Private Corporations § 5822. One of the frequently quoted statements of this doctrine is that of Mr. Justice Brandéis, concurring in Ashwander v. T.V.A., 1936, 297 U.S. 288, 343, 56 S.Ct. 466, 481, 80 L.Ed. 688: “[Stockholders] cannot secure the aid of a court to correct what appear to them to be mistakes of judgment on the part of the officers. * * * This rule applies whether the mistake is due to error of fact or of law, or merely to bad business judgment. It applies * * * where the mistake alleged is the refusal to assert a seemingly clear cause of action * * * Also meriting particular mention because of its direct applicability here is the holding of the Court in United" }, { "docid": "20196906", "title": "", "text": "his wishes. He must make an earnest, not a simulated, effort, with the managing body of the corporation, to induce remedial action on their part, and this must be made apparent to the court. If time permits, or has permitted, he must show, if he fails with the directors, that he has made an honest effort to obtain action by the stockholders as a body, in the matter of which he complains. And he must show a case, if this is not done, where it could not be done, or it was not reasonable to require it.” See, also, Detroit v. Dean, 106 U.S. 537-542, 1 S.Ct. 560, 27 L.Ed. 300, 302; Quincy v. Steel, 120 U.S. 241, 7 S.Ct. 520, 30 L.Ed. 624. While this case is unlike that in that it does not attempt to transfer from a state to a Federal court a controversy which really belongs in the former, — there being none other than Federal courts in the territory, — yet the principle is the same, for it is an effort to secure for the benefit of the corporation an injunction which it could not itself obtain, and which no individual similarly situated can obtain. Immediately after announcing the decision in Hawes v. Oakland, 104 U.S. 450, sub nom. Hawes v. Contra Costa Water Co., 26 L.Ed. 827, this court promulgated an additional equity rule (rule 94) : “Every bill brought by one or more stockholders in a corporation against the corporation and other parties, founded on rights which may properly be asserted by the corporation, must be verified by oath, and must contain an allegation that the plaintiff was a shareholder at the time of' the transaction of which he complains, or that his share had devolved on him since by operation of law; and that the suit is not a collusive one to confer on a court of the United States jurisdiction of á case of which it would not otherwise have cognizance. It must also set forth with particularity the efforts of the plaintiff to secure such action as he desires on" }, { "docid": "9577165", "title": "", "text": "to the president of the Trust Company, referred to in the bill, stating that demand had been made on such president, is a purely self-serving declaration and adds no support to appellants’ cause. Equity Rule 27 requires that demand be made not upon an officer or an individual director, but upon the directors or stockholders as a prerequisite to bringing suit. In addition, it is the spirit of the rule as repeatedly interpreted in federal decisions that stockholders bringing a derivative action shall exhaust every remedy within the corporation before suing the directors on causes of action which in the first instance should be asserted by the corporation. Quincy v. Steel, 120 U.S. 241, 7 S.Ct. 520, 30 L.Ed. 624; Wathen v. Jackson Oil & Refining Co., 235 U.S. 635, 35 S.Ct. 225, 59 L.Ed. 395; Stone v. Holly Hill Fruit Products, Inc., 56 F.(2d) 553 (C.C.A. 5). Cf. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 317, 56 S.Ct. 466, 80 L.Ed. 688. While the record does not show the precise period of the receivership, The Trust Company, for a considerable time was administered by a receiver, whose appointment was a matter of public record. The bill sets forth no demand made upon the receiver to sue the .old directors during the period of the receivership, although obviously the receiver was the proper party to have attacked the illegal acts, if any, performed by the old directors. Cf. Klein v. Peter, 286 F. 362 (C.C.A.9). The prerequisites for bringing a derivative action under Equity Rule 27 are laid down in the leading case of Hawes v. Oakland, 104 U.S. 450, 26 L.Ed. 827. The court, at page 460 of 104 U.S., 26 L.Ed. 827, states: “ * * * he [the plaintiff] should show, to the satisfaction of the court, that he has exhausted all the means within his reach to obtain, within the corporation itself, the redress of his grievances, or action in conformity to his wishes. He must make an earnest, not a simulated effort, with the managing body of the corporation, to induce remedial action on" }, { "docid": "1321565", "title": "", "text": "to seek another stockholders’ meeting, after informing the other stockholders of the situation and asking them to withdraw their proxies and to attend. A stockholder, in taking stock in the ordinary corporation, submits, within the charter limits, to a guidance of the corporate affairs according to the will of the owners of a majority of the stock and through the directors whom the majority choose. The minority have a right to have the majority exercise their judgment, and to exercise it honestly and not fraudulently, but have no right to have a court substitute their own ideas and wishes for those of the majority, and that in advance of any refusal of the majority to hear and decide on the matter at issue. Minority stockholders may not in the absence of sudden emergency ask a court of equity to interfere in the management of their corporation until they have earnestly and unsuccessfully sought redress from the Board of Directors, and where appropriate also from the stockholders in meeting, unless they can show sufficient reasons for not doing so. This is implied in the provisions of Equity Rule 27 (28 USCA § 723). For defect in this respect a bill will be dismissed. Wathen v. Jackson Oil & Refining Co., 235 U. S. 635, 35 S. Ct. 225, 59 L. Ed. 395; Corbus v. Gold Mining Co., 187 U. S. 463, 23 S. Ct. 157, 47 L. Ed. 256; Hawes v. Oakland, 104 U. S. 450, 26 L. Ed. 827; Dimpfel v. Ohio & Mississippi R. R. Co., 110 U. S. 209, 3 S. Ct. 573, 28 L. Ed. 121; Memphis v. Dean, 8 Wall. at page 73, 19 L. Ed. 326. The general averment that complainants had objected to the president does not meet the particular requirements of the rule. There is alleged no dominance of the board of directors or of the stockholders by those whose personal interests are adverse to the relief sought by the bill such as to make it evidently futile to expect fair consideration within the corporation, as there was in Doctor v. Harrington, 196" }, { "docid": "9577168", "title": "", "text": "is averred in the instant case, it is not necessary that fraud be alleged in the derivative action. Ashwander v. Tennessee Valley Authority, supra. We also have considered the declaration in Ross v. Quinnesec Iron Mining Co., 227 F. 337 (C.C.A.6), that the requirements of Equity Rule 27 are met in showing the futility of any request to either stockholders or directors. Futility was there shown by the fact that the directors were in complete control of the corporation and were the direct beneficiaries of the contract involved. While in the instant case the pleadings aver that the directors are antagonistic to the reqxiested action, this case is clearly distinguished by the fact that there is no allegation that the directors are personally interested in the outcome of the controversy over the alleged illegal investments. The instant bill sets up no domination of the board of directors or of the stockholders by those whose personal interests are adverse to the relief sought, so as to make it evidently futile to expect fair consideration within the corporation, as there was in Doctor v. Harrington, 196 U.S. 579, 25 S.Ct. 355, 49 L.Ed. 606; Delaware & Hudson Co. v. Albany & Susquehanna R. Co., 213 U.S. 435, 29 S.Ct. 540, 53 L.Ed. 862, and Ross v. Quinnesec Iron Mining Co., supra. Appellants made no complaint to nor demand of the former directors. In a bill which shows no complaint to or demand upon the stockholders, they substantiate their allegation of demand upon the directors by showing that they have made demand upon the president only. Such failure to exhaust the remedies within the corporation justified the District Court in dismissal of the bill. Watts v. Vanderbilt, 45 F.(2d) 968 (C.C.A.2). The order of the District Court is affirmed." }, { "docid": "10498410", "title": "", "text": "F.2d 554 certiorari denied 301 U.S. 706, 57 S.Ct. 939, 81 L.Ed. 1360; Wales v. Jacobs, 6 Cir., 104 F.2d 264, 267, certiorari denied 308 U.S. 599, 60 S.Ct. 130, 84 L.Ed. 501; Lucking v. Delano, supra. When a corporation is in receivership the demand must be made upon the receiver, and the party seeking to avail himself of the derivative action must “make an earnest, not a simulated effort to induce remedial action. The efforts to induce such action * * * should be stated with particularity.” Hawes v. Oakland, 104 U.S. 450, 461, 26 L.Ed. 827. This rule was carried over into Equity Rule 27, and is again declared in Rule 23(b) of Federal Rules of Civil Procedure. The complaint, apart from alleging a single demand, does not show that earnest efforts have been made to induce action on the part of the receiver. The uncontroverted fact that the appellants failed to answer the receiver’s letter indicates that an earnest effort was not made. The complaint avers no fact justifying the conclusion that such efforts were made and does not set forth the cause of the failure to obtain the action desired. In fact the complaint is an aggregation of general conclusions. Upon the point of the receiver’s refusal to sue it simply alleges that he had failed and refused to bring the action. This is not sufficient. Quincy v. Steel, 120 U.S. 241, 246, 247, 7 S.Ct. 520, 30 L.Ed. 624. Here, as there, the record shows only a single effort on the part of the appellants to induce the receiver to sue. If communications in writing other than the written demand above mentioned were addressed to the receiver they are not produced, nor does the complaint detail any efforts at conferences with the receiver upon this subject, in order to induce him to bring a suit. Under settled law, the District Court was compelled to sustain the motion' to dismiss. Appellants urge, however, that the ground of dismissal is at best technical that the effect of the motion to dismiss is to admit the truth of" }, { "docid": "11432239", "title": "", "text": "I do — presume that the board acted in good faith. Corbus v. Alaska Treadwell Gold Mining Co., 187 U.S. 455, 463, 23 S.Ct. 157, 47 L.Ed. 256. Even if the board had believed that Anglo had a right of action, it might also, in good faith, have believed that it was not to Anglo’s best interest to bring suit thereon and, so believing, might properly have waived such right of action. Hawes v. Oakland, supra, 104 U.S. at page 462, 26 L.Ed. 827; Corbus v. Alaska Treadwell Gold Mining Co., supra; United Copper Securities Co. v. Amalgamated Copper Co., 244 U.S. 261, 263, 264, 37 S.Ct. 509, 61 L.Ed. 1119. Having failed to show that the board’s failure to sue constituted a fraud or breach of trust, or that it was in any respect wrongful or improper, appellees had, and have, no standing to maintain this suit. The decree should he reversed and the case should he remanded with directions to dismiss the bill of complaint. Formerly the Anglo and London Paris National Bank of San Francisco. Blum v. Fleishhacker, D.C.. 21, F. Supp. 527. The bill alleged that Fleishhaeker’s nominees were Klinker, Thompson and Stock Farms. Reaffirmed in Huntington v. Palmer, 104 U.S. 482, 26 L.Ed. 833; Detroit v. Dean, 106 U.S. 537, 539-542, 1 S.Ct. 560, 27 L.Ed. 300; Quincy v. Steel, 120 U.S. 241, 244-249, 7 S.Ct. 520, 30 L.Ed. 624; Corbus v. Alaska Treadwell Gold Mining Co., 187 U.S. 455, 459-65, 23 S.Ct. 157, 47 L.Ed. 256; Stewart v. Washington & Alaska Steamship Co., 187 U.S. 466, 23 S.Ct. 161, 47 L.Ed. 261; Wathen v. Jackson Oil & Refining Co., 235 U.S. 635, 639-641, 35 S.Ct. 225, 59 L.Ed. 395; United Copper Securities Co. Anglo is a corporation. 12 U.S.C.A. § 24. As in Dodge v. Woolsey, 18 How. 331, 340-346, 15 L.Ed. 401. As in Doctor v. Harrington, 196 U.S. 579, 587-589, 25 S.Ct. 355, 49 L.Ed. 606. Such a ease arises where a board of directors is pursuing a course of action amounting, in law, to a breach of trust, and such course," }, { "docid": "714678", "title": "", "text": "omission in his Amended Complaints. C. Failure to Allege a Demand on the Directors Rule 23.1, Federal Rules of Civil Procedure, requires that the Complaint allege with particularity the efforts, if any, made by the Plaintiff to obtain the action he desires from the directors or comparable authority of the corporation, or if necessary from the shareholders, and the reasons for his failure to take this action. The Complaint should be dismissed if the Plaintiff fails to make this allegation. Johnson v. Arthur Espey, Shearson Hammill & Co., 341 F.Supp. 764 (S.D.N.Y.1972); Hawes v. Contra Costa Water Co., 104 U.S. 450, 26 L.Ed. 827. This allegation is necessary because a shareholder is required to exhaust his intracorporate remedies before coming into any Court. The determination of whether or not a demand on the directors, or other corporate officers is necessary and whether the excuse for not making the demand is sufficient is within the sound discretion of the trial court. The decision will usually be based on the allegations of the Complaint. Courts have generally been lenient in excusing demand. Jannes v. Microwave Communications, Inc., 57 F.R.D. 18 (N.D.Ill. 1972); deHaas v. Empire Petroleum Company, 435 F.2d 1223 (Tenth Cir. 1970). The necessity of a preliminary demand on the directors before the commencement of a stockholders’ derivative suit and the circumstances which set aside the demand is procedural in nature and is covered by Federal law. Belcher v. Birmingham Trust National Bank, 348 F.Supp. 61, at 142 (N.D.Ala.1968). Meltzer v. Atlantic Research Corporation, 330 F.2d 946 (Fourth Cir. 1964). In a situation where a derivative suit is brought against the majority of the directors of a corporation for wilful or negligent breach of their fiduciary duties a demand as a prerequisite to the bringing of a suit is almost always excused. Jannes v. Microwave Communications, Inc., supra. Similarly the demand is excused where the board of directors is subject to the control of the alleged wrongdoers and is hostile to the Plaintiff’s claim. Schreiber v. Jacobs, 121 F.Supp. 610 (E.D.Mich.1953); Liboff v. Wolfson, 437 F.2d 121 (Fifth Cir. 1971); Papilsky" }, { "docid": "9577164", "title": "", "text": "belief that records of the Trust Company would show that the new directors, meeting as a board, previous to the demand had considered bringing suit and had decided against taking action. The court overruled the motion and refused to allow the amendment to be filed. Appellants assign this refusal as error. Even if the court had permitted the filing of the amendment to paragraph 7 as requested, the bill would nob have complied with Equity Rule 27. The allegations of paragraph 6 as to the demand made upon the new directors are insufficient because they fail to relate with particularity the facts of the alleged demand and refusal. While appellants aver that they could obtain no relief from stockholders’ meetings, nowhere do they allege that the matter was presented to the stockholders for action. The amplified reasons alleged in the proffered amendment to paragraph 7 for making ho demand upon the directors do not dispense with an effort to secure action by the stockholders. The letter sent by counsel for appellants on February 19, 1934, to the president of the Trust Company, referred to in the bill, stating that demand had been made on such president, is a purely self-serving declaration and adds no support to appellants’ cause. Equity Rule 27 requires that demand be made not upon an officer or an individual director, but upon the directors or stockholders as a prerequisite to bringing suit. In addition, it is the spirit of the rule as repeatedly interpreted in federal decisions that stockholders bringing a derivative action shall exhaust every remedy within the corporation before suing the directors on causes of action which in the first instance should be asserted by the corporation. Quincy v. Steel, 120 U.S. 241, 7 S.Ct. 520, 30 L.Ed. 624; Wathen v. Jackson Oil & Refining Co., 235 U.S. 635, 35 S.Ct. 225, 59 L.Ed. 395; Stone v. Holly Hill Fruit Products, Inc., 56 F.(2d) 553 (C.C.A. 5). Cf. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 317, 56 S.Ct. 466, 80 L.Ed. 688. While the record does not show the precise period of the" }, { "docid": "18425440", "title": "", "text": "duties of the board of directors unless it is clear that the board has no intention of taking appropriate action.” Brooks v. American Export Industries, Inc., 68 F.R.D. 506, 510 (S.D.N.Y.1975). In light of the policy underlying Rule 23.1, it is clear that a party may not satisfy the demand requirement by alleging the making of a demand, without alleging what response, if any, was made thereto by the directors. To allow a party to satisfy the demand requirement without stating the response of the directors would be wholly at odds with Rule 23.1’s purpose of giving the corporation an opportunity to take over a suit brought on its behalf. Unless a party bringing a derivative action alleges what response, if any, was made by the directors, it cannot be clear that the directors have no intention of taking appropriate action. Thus, the principle that a party seeking to bring a derivative action must include in his allegations a statement of the directors’ response has been well-established since the Supreme Court’s holding in Hawes v. Oakland, 104 U.S. 450, 26 L.Ed. 827 (1881). In Hawes, a minority stockholder sought to bring a derivative action five days after he had made a written demand upon the board of directors to sue, and before the board of directors had responded. The Court affirmed the lower court’s dismissal of the complaint, stating: [I]t is equally important that before the shareholder is permitted in his own name to institute and cpnduct a litigation which usually belongs to the corporation, he should show to the satisfaction of the court that he has exhausted all the means within his reach to obtain, within the corporation itself, the redress of his grievances, or action in conformity to his wishes. He must make an earnest, not a simulated effort, with the managing body of the corporation, to induce remedial action on their part, and this must be made apparent to the court. . It is needless to say that appellant’s bill presents no such case as we have here supposed to be necessary to the jurisdiction of the" } ]

[ { "docid": "22625946", "title": "", "text": "Mr. Justice Bradley delivered the opinion of the court. The point principally relied on by the plaintiff in error is, that an assignee in bankruptcy cannot sue in the State courts. It is argued that the cause of action arises purely and solely out of the provisions of an act of Congress, .and can only be prosecuted in the courts of the United States, the State courts having no jurisdiction over the subject. It is but recently settled that the several district and circuit courts \"of the United States have jurisdiction, under the bankrupt law, of causes arising out of proceedings in bankruptcy pending in other districts. There had been much doubt on the subject, but it was finally settled at the last term of this court in favor of the jurisdiction. Lathrop, Assignee, v. Drake et al., 91 U. S. 516. Had the decision been otherwise, as for a long period was generally supposed to be the law, assignees in bankruptcy, if the position of the plaintiff in error is correct, would have been utterly without remedy to collect the assets of the bankrupt in districts other than that in which the bankruptcy proceedings were pending. Neither the State courts nor the Federal courts could have entertained jurisdiction. The Revised Statutes, whether inadvertently or not, have made the jurisdiction of the United States courts exclusive in “ all matters and proceedings in bankruptcy.” Sect. 711. Whether this regulation will or will not affect the cognizance of plenary actions and suits, it is not necessary now to determine. At all events-, the question of such cognizance must be met in this case; and, being important in the principles involved, would require much deliberate consideration, had it not been already in effect decided by the court. In the opinion of the court, in Lathop, Assignee, v. Drake et al., it was taken for granted, and stated, that the State courts had jurisdiction (p. 518) ; but as the question was not directly involved in that case, it was more fully considered in Eyster v. Gaff et al., 91 U. S. 521," } ]

[ { "docid": "22553756", "title": "", "text": "suit, to do so. It could not take judicial notice of the proceedings in,bankruptcy in another court, however seriously they might have affected the rights of parties to the suit already pending. It was the duty of that court to proceed to a decree as between the parties before it, until by some proper pleadings in the case it was informed of the changed relations of any of those parties to the subject-matter of the suit. Having such jurisdiction, and performing its duty as the case stood in that court, we are at a loss to see how its decree can be treated as void. It is almost certain, that if at any stage of the proceeding, before sale or final confirmation, the assignee had intervened, he. would, have been heard to assert any right he had, or set up any defence to the suit. The mere filing in the court of a certificate of his appointment as assignee, with no plea or motion to be made a party or to take part in the case, deserved no attention, and received none. In the absence of any appearance by the assignee, the validity of the decree can only be impeached on the principle that the adjudication of bankruptcy divested the other court of all jurisdiction whatever in the foreclosure-suit. The opinion seems to have been quite prevalent in many quarters at one time, that, the moment a man is declared bankrupt, the District Court which has so adjudged draws to itself by that act not only all control of the bankrupt’s property and credits, but that no one can litigate with the assignee contested rights in any other court, except in so far as the circuit courts have concurrent jurisdiction, and that other courts can proceed no further in suits of which they had at that time full cognizance ; and it was a prevalent practice to bring any person, who contested with the assignee any matter growing out of disputed rights of property or’ of contracts, into the bankrupt court by the service of a rule to show cause," }, { "docid": "15177870", "title": "", "text": "of the State court, and of procuring another sale of the attached property, under the orders of the court in bankruptcy, the proceedings in the State court would have been a conclusive answer to such an action; Plainty, therefore, the'present suit by Friedlander, Stich, & Co. is an attempt to invoke the jurisdiction of the District Court sitting in bankruptcy, to the end that they may establish, as against other creditors of Kaufman, their priority of lien upon property, in which, as we have seen, the assignees can now assert no right or interest for the benefit of general or unsecured creditors. Whether appellees have such priority of lien in virtue of their attachment in the law court; whether the proceedings in that court were such as, under the laws of Tennessee, gave them a lien superioi to that acquired by the respective attaching creditors in the suits in the chancery-court; whether, by reason of their petition addressed to the chancellor of the latter court, and his action thereon, they became, in any proper sense, parties to those suits, or bound by the decree therein rendered, or, whether their rights were altogether unaffected by that decree, — are all questions in which the assignees have now no interest. These questions concern only the respective attaching creditors in the law and chancery- courts, aird for the determination of them the present appellees may not invoke the jurisdiction-or aid of the bankruptcy court. The decree, and the sale thereunder, withdrew the attached property from the assets of the bankrupt. The property brought less than the claims of the attaching creditors ; and since the assignees cannot question,'collaterally, the proceedings in the State court, to which they voluntarily became parties, they have.no possible interest in this litigation. It is, we repeat, a contest exclusively between attaching creditors as to priority of liens upon property in the disposition of which, so far as we can “ascertain from the present record, the assignees' have-not the slightest pecuniary interest. The decree1 of the Circuit Court will be, therefore, reversed, with directions that the petition-of Friedlander, Stich," }, { "docid": "17924907", "title": "", "text": "the bankruptcy of his adversary.. The same courts remain open to him in such contests, and the statute has not divested those courts of jurisdiction in such actions. If it has for certain classes of actions conferred jurisdiction for the benefit of the' assignee in the Circuit arid District Courts of -the United States, it is concurrent, and does not divest that of the State courts.”. The principles, upon which those cases rest are decisive of this. The complainant, having a-debt against the bankrupt secured by mortgage, proved the claim against the estate. This, under sect. 20 of the bankrupt law, 14 Stat. 526, Rev. Stat., sect. 5075, admitted the complainant as a creditor, of the general estate only for the balance of the debt after deducting the value of the mortgaged property, to be ascertained by agreement, sale, or in such other manner as the bankrupt court might direct. .The assignee is not required to take measures for the sale of mortgaged property, unless its value is greater than the. incumbrance. His duties relate chiefly to unsecured creditors, and he need not trouble himself about incumbered property, unless something may be realized out of it on their account, or unless it becomes necessary .to do so in order to ascertain the rights of the secured creditor in the general estate. If he does, and it becomes necessary to adjust the liens before his sale, he may, under the ruling in Claflin v. Houseman, institute the necessary proceedings for that purpose in the 'courts of the United States, or of the State, as h.e chooses. If he. does not, the secured creditor who wishes to make'his security available must act; and, Having obtained leave of the bankrupt court to bring his action for that purpose, he may proceed in the State court, if the assignee does not object, or in the courts of the United States, at his election. Here the necessary leave to sue was obtained before the decree was rendered, and the assignee, instead of .objecting to the'jurisdiction of the State court, consented to that mode of proceeding." }, { "docid": "17179576", "title": "", "text": "sect. 2 of the original Bankrupt Act, now sect. 4979 of the Revised Statutes. We recently decided, in the ease of Loir throp, Assignee, v. Drake et al., 91 U. S. 516, that this jurisdiction may be exercised by any circuit court having jurisdiction of the parties, and is not confined to the court of the district in which the decree of bankruptcy was made. Therefore the time when the bankruptcy occurred or when the assignment was made is totally immaterial. The court, under the Bankrupt Act, has jurisdiction of the cause as between the assignee in bankruptcy and the complainant, without reference to the citizenship of the parties. As between the other parties and the complainant, of course, citizenship is material. But no objection to the jurisdiction exists on that account in point of fact, as the residence of the parties is such as is required in order to give it. Therefore, though the suit had not been commenced until after the appointment of the assignee, and after the assignment to him, the complainant might still have instituted the suit in the Circuit Court in Louisiana, if process could have been served upon the defendants. But, inasmuch as the parties were citizens of different States, she might have done this without the aid of the section referred to. We recently held, in the case of Eyster v. Gaff et al., id. 521, that the Bankrupt Law has not deprived the State courts of jurisdiction over suits brought to decide rights of property between the bankrupt (or his assignee) and third persons; and, whenever the State courts have jurisdiction, the circuit courts of the United States have it, if the proper citizenship of the parties exists. In the case last referred to, a suit to foreclose a mortgage was commenced before the mortgagor went into bankruptcy; but the decree was not rendered until after that event and the appointment of an assignee. We decided that the validity of the suit or of the decree was not affected by the intervening bankruptcy; that the assignee might or might not be made" }, { "docid": "345140", "title": "", "text": "of the present suit was, conclusive and binding upon the bankrupt and its trustee as to the question of title thereby decided. It is clear that, upon his election as trustee in bankruptcy, appellant herein became vested with title only to such property as belonged to the bankrupt at the time of the commencement of the bankruptcy proceedings, and lias no right to have set aside the transfer of property, such as that here involved, which did not according to the decree of the state court belong to the bankrupt. In Eyster v. Gaff, 91 U.S. 521, 23 L.Ed. 403, the Supreme Court enunciated the rule which is here applicable and which effectively disposes of appellant’s argument and said: “ * * * The Bankrupt Act expressly provides that the assignee may prosecute or defend all suits in which the bankrupt was a party at the time he was adjudged a bankrupt. If there was any reason for interposing, the assignee could have had himself substituted for the bankrupt, or made a defendant on petition. If he chose to let the suit proceed without such defense, he stands as any other person would on whom the title had fallen since the suit was commenced. “If is a mistake to suppose that the Bankrupt Law avoids of its own force all judicial proceedings in the State or other courts the instant one of the parties is adjudged a bankrupt. There is nothing in the act which sanctions such a proposition. “The court in the case before us had acquired jurisdiction of the parties and of the subject-matter of the suit. It was competent to administer full justice, and was proceeding, according to the law which governed such a suit, to do so. It could not take judicial notice of the proceedings in bankruptcy in another court, however seriously they might have affected the rights of parties to the suit already pending. “It was the duty of that court to proceed to a decree as between the parties before it, until by some proper pleadings in the case it was informed of" }, { "docid": "22886145", "title": "", "text": "& E. B. Place, as wholesale grocers, commenced' business as partners on the first day of December, 1865, and so continued until Dec.' 28,1867. Their operations amounted to several millions of • dollars. On the day last mentioned, finding themselves insolvent, they made a general, assignment to Lewis W. Burrit and Thomas T. Sheffield; and, on the twenty-seventh day of February, 1868, they filed a petition in bankruptcy, under which the appellee, Sedgwick, was appointed assignee. Some time after-this, the assignee brought-his bill in chancery in the District óourt for the Southern- District of New York, where the bankruptcy proceedings were pending, against the two bankrupts, and sundry other persons supposed to have money or property which ought to come to the assignee,-of to have liens of other claims on such property. . A decree was rendered which settled finally .much that was in controversy, but in reference to two important matters appeals were taken to the Circuit Court; and it is in. regard to the same matters that the two appeals now before us are taken. The first of these, involved in the first case, grows out 'of the allegation in the bill that certain real estate, which we shall call the Fifth Avenue property (and which was sold under order of the court pending the suit and the proceeds paid into court), was, in law and equity, the property of the bankrupts, and that the proceeds should go to the assignee, to be admin istered as part'of the assets of the bankrupt firm. John L. Phipps & Co. asserted a claim to this property and these pro- \"■ ceeds, which we will presently consider. The ..District Court decided.that the Fifth Avenue. property was but a fair and reasonable settlement of James K. Place upon- his wife, which' was not fraudulent as to his creditors, and ordered the proceeds of the sale to be paid to Phipps & Co.,' -who asserted rights' under Mrs. Place. On appeal, the Circuit Court.reversed this decree, ahd held that the settlement was fraudulent ás to creditors, and .ordered, the. proceeds of the sale," }, { "docid": "16642305", "title": "", "text": "actions in his own name, as receiver, . . . and generally do such acts respecting the property as the court- authorizes.” Under this provision the Common Pleas Court had jurisdiction to determine what actions the receiver might bring. The action against Leach & Co., — involving in effect the claim of an illegal taking by it of a large amount of the Company’s bonds, which if recovered would reduce the amount of the mortgage lien — came, we think, fairly within the terms of the statute as an act respecting property in the custody of the court in the trustee’s suit. But even if this were not the case, the order specifically authorizing and directing the receiver to bring the action in the District Court was one which the Common Pleas Court had jurisdiction tb make in the exercise.of its'discretion andt under' the' construction which it. placed upon the statute; and, as such, was not one which, even if erroneous, was subject to the collateral attack which Leach & Co. sought to interpose in the District Court. Thus, in Sanger v. Upton, Assignee, 91 U. S. 56, 58, the District Court, on the application of the assignee of a bankrupt corporation, had made an ex parte order that the balance unpaid on the stock of the several stockholders should be paid to the assignee by a certain day, and in default of such payment the assignee should proceed to collect the amount due from each delinquent stockholder. This Court, in a suit instituted by the assignee in the Circuit Court against a stockholder who had failed to pay pursuant to that order, said: “ The order was conclusive as to the right of the assignee to bring the suit. Jurisdiction was given to the District Court by the Bankrupt Act . . . to make it. It was not necessary that the stockholders should be before the court when it was made, any more than that they should have been there when the decree of bankruptcy was pronounced. That decree gave the jurisdiction and authority to make the order." }, { "docid": "22753358", "title": "", "text": "of precedents for such a judgment. When an administrator pleads plene administravit, the plaintiff may admit the plea, and take judgment of assets, quando acdderint. When the defendant pleads a discharge of his person under an insolvent law, the plaintiff may confess the plea, and have judgment to be levied only of defendant’s future effects. 1 Chitty, PI. 548. III. The only question that remains to be considered is,. whether the rejoinder of the defendants below is a sufficient answer to the replication. It sets up, by way of avoidance of the attachment pleaded in the replication, that the District Court of the United States, on the petition of the assignee, and on notice to the plaintiff in this suit, had decreed that _this attachment was not a lien oii the property in the custody *he sheriff, and ordered him to deliver it up to' the assignee, or account to him for its value. It does not pretend to show how the proceedings in the Court, of Common Pleas had been removed to the District Court, or how its judgment on the cause pending before it could be thus anticipated; nor that the District Court had found any means of enforcing its decree by compelling the sheriff to deliver the property attached to ■ the assignee, and thus, in effect, destroy the-lien: but it seems to rely on,the decree as a judgment on the question, which should operate by way of estoppel. This necessarily involves the inquiry, whether the District Court was vested with any power or authority to oust the Court of Common Pleas of its jurisdiction over the cause, aud supersede its judgment, by this summary proceeding. The District Court has exclusive jurisdiction \" of all suits and proceedings in bankruptcy.” But the suit pending before the Court of.Common Pleas was not a suit or proceeding in bankruptcy; and although the plea of bankruptcy was interposed. by the defendants, the court was as competent to entertain and judge of that plea as of any other. It had full and complete jurisdiction over the parties and the subjecfc-mattér of" }, { "docid": "15177868", "title": "", "text": "bound to pursue that course. . Consistently with the bankrupt law, as interpreted by this court, they were at liberty to appear in the State court, and assert there whatever rights they, as assignees, had in the attached property. Electing to pursue the latter course, they voluntarily submitted to the jurisdiction of the State court, which had ample authority to adjudicate, between the attaching creditors and the assignees in bankruptcy, upon all matters arising in the suits before it. Without questioning (as they do not now) the debts of the attaching creditors or the validity of their attachments, the assignees became parties defendant in tbe equity suits. • They neither filed nor offered to file any formal pleading. Nor did they advise the chancery court of the attachment of Fried-lander, Stich, & Co. in the law court. They left that court to adjudge what were their rights in the property attached. Its final decree secured to them whatever surplus might remain after applying the proceeds of sale to the demands of the attaching creditors. If the bankrupt owed the attaching creditors the sums by them respectively claimed, and if the attachments were so issued and levied as, under the laws of the State, to create a valid lien upon the property, it is clear that the State court gave the assignees all that could have been awarded them. It results from what has been said, that the sale, under that decree, — whoever became the purchasers of the attached property, whether third persons or parties to the suits, — divested the assignees of whatever interest or title they had in the property. That decree, having been passed by a court of competent jurisdiction as to parties and subject-matter, and never having been modified by the court which rendered it, or by any court having authority to review its action, the assignees áre precluded from asserting in any other court any interest or-title whatever in the property thus sold. Had the present suit been instituted directly by the assignees, for the purpose of setting aside the sale made under the order" }, { "docid": "22744352", "title": "", "text": "of all the assets of the bankrupt; to the ascertainment and liquidation of the liens and other specific claims thereon; to the adjustment of the various priorities and conflicting interests of all parties, and to the marshalling and disposition of the different funds and assets, so as to secure the rights of all parties and due distribution of the assets among all the creditors; and to all acts, matters and things to be done under and in virtue of the bankruptcy, until the final distribution and settlement of the estate of the bankrupt, and the close of the proceedings in bankruptcy.” 14 Stat. 517; Rev. Stat. §§ 563, 711, 4972, 4973. “ Sec. 2. That the several Circuit Courts of the United States, within and for the districts where the proceedings in bankruptcy shall be pending, shall have a general superintendence and jurisdiction of all cases and questions arising under this act; and, except when special provision is otherwise made, may, upon bill, petition or other proper process, of any party aggrieved, hear and determine the case in a court of equit}?. The powers and jurisdiction hereby granted may be exercised either by said court or by any justice thereof in term time or vacation. Said Circuit Courts shall also have concurrent jurisdiction with the District Courts of the same district of all suits at law or in equity, which may or shall be brought by the assignee in bankruptcy against any person claiming an adverse interest, or by such person against such assignee, touching any property or rights of property of said bankrupt transferable to or vested in such assignee.” 14 Stat. 518; Eev. Stat. §§4979, 4986. In Lathrop v. Drake, (1875) 91 U. S. 516, the jurisdiction conferred on the District Courts and the Circuit Courts of the United States by the Bankrupt Act of 1867 was defined by this court, speaking by Mr. Justice Bradley, as consisting of “two distinct classes: first, jurisdiction, as a court of bankruptcy, over the proceedings in bankruptcy, initiated by the petition, and ending in the distribution of assets amongst the creditors," }, { "docid": "1694068", "title": "", "text": "sold for substantially more than enough to discharge the lien or liens upon it. In re Franklin Brewing Company, 2 Cir., 249 F. 333; Ray v. Norseworthy, 23 Wall. 128, 9 U.S. 128, 137, 23 L.Ed. 116. The court must be satisfied that a sale will be to the interest of the general creditors and not injure the lien-holders and where a trustee files a petition to sell real estate free of liens and the lien-holders join issue with him, the burden -is on him to make it appear that there is a reasonable probability the property will bring more than the amount of the liens. Applying these principles to the instant case, it at once becomes apparent that the court abused its discretion in ordering the sale of the property in question free from liens. . Appellants were adverse claimants and the plenary action pending in the state court had not been concluded at the time .the sale was ordered and there was no showing by the trustee, that there was a reasonable probability the property would bring more' than the amount of the liens. Appellants insist that as their lien was obtained by 'virtue of -the - executory land contract and was in existence more than eleven months prior to the institution of these proceedings and that as their action to enforce- it was pending in the Court of Common Pleas in the County of Cuyahoga, Ohio, at the time the order was entered in the bankruptcy court for liquidation of the debtor, the latter court lacked jurisdiction to order the sale' of the property, the Ohio Court having exclusive jurisdiction to determine the rights of the parties and to decree a sale. The question urged for decision is whether the suit instituted by appellants in the Court of Common Pleas for the County of Cuyahoga, Ohio, could have'been stayed by an order in the bankruptcy proceedings, or whether the State Court, by reason of the institution of the action prior to the- commencement of the bankruptcy proceedings, had constructively acquired possession of the property. Title to the" }, { "docid": "15177862", "title": "", "text": "Mr. Justice Harlan, after stating the facts, delivered the opinion of the court. In Doe v. Childress (21 Wall. 642), we considered the effect of proceedings in bankruptcy upon an attachment issued from a State court and levied upon the property of the bankrupt, more than four months prior to their commencement. That was an action of ejectment, by the assignee of a bankrupt, to recover land claimed by the defendant under a decretal sale in an attachment suit in a State court against the bankrupt. ' The latter was declared a bankrupt ten months after the institution of the attachment suit, four months before the decree therein, and seven months prior to' the sale at which the defendant became the purchaser of the land. Upon this state of facts it was ruled that the proceedings in bankruptcy did not operate to dissolve the attachment; that the debtor’s title passed to the assignee, subject to the lien created by the attachment; and that a judgment could be entered for the sale of the property, notwithstanding a discharge previously granted was-pleaded in bar of the action. It was said by the court that, “ where the power of a State court to proceed in a suit is subject to be impeached, it cannot be done except upon an intervention by the assignee, who shall state the facts and make the proof necessary to terminate such jurisdiction. ... If the assignee had intervened in the suit, he would have been entitled' to the property or its proceeds, subject to this [the attachment] lien. He did not, however, intervene or take any measures in the case. He allowed the property to be sold under the judgments in the attachment suits, and those under whom the defendant claim! purchased it, obtaining' a perfect title to the same.” In Scott v. Kelly (22 id. 57), it appears that the assignee in bankruptcy became a party to an attachment suit in a State court, commenced shortly before the defendant was declared a bankrupt. The attachment was issued and levied after-.the adjudication. The assignee claimed the attached" }, { "docid": "12397685", "title": "", "text": "to the masters heretofore appointed, with instructions to- report to the court, oh or before the 10th day of July, 1887, the extent and amount of all liens prior to said general mortgage upon the properties thereby covered,, and also to report to the court full and detailed statements of the several properties, real and personal* of the Philadelphia and Beading Railroad Company subject to the lien of said general mortgage, in accordance with the principles stated in the report of the masters heretofore filed, and also to report what liens, if any, are upon the several properties of the said Philadelphia and Beading Railroad Company and the Philadelphia and Beading Iron and Coal Company junior to said general mortgage, and the .order of their priority; and it is further ordered, that said masters do prepare and report tó the court an order of sale of said mortgaged properties, and form of advertisement therefor.” From that decree this appeal was taken by Parsons alone, and the first question we. will consider is, whether it is a .final decree within the meaning of that term as used in the statutes which provide for appeals to this court from the final decrees of the Circuit Courts in cases of equity jurisdiction. That “ a decree of sale in a foreclosure suit, which settles all the rights of the parties and leaves nothing to be done, but to make the sale and pay out thé proceeds, is a final decree for the purposes of an appeal ” is no longer an open question in this court. Grant v. Phoenix Insurance Co., 106 U. S. 429, 431, and cases there cited. Here, however, there is as yet no decree of sale. As was -said in Railroad Company v. Swasey, 23 Wall. 405, 409, “ to justify such a sale, without consent, the' amount due upon the debt must be determined and the. property to be sold ascertained and defined. Until this is done, the rights of the parties are not all settled. Final process for the 'collection of money cannot issue until the amount" }, { "docid": "15177864", "title": "", "text": "property, but the decision in the State court was adverse to him. Upon writ of error to this court, we said-that “ the assignee in bankruptcy voluntarily submitted himself and his eights to the jurisdiction of the State court. Being summoned, he appeared without objection, and presented-his claim for adjudication by that court. No eifort was made to remove the litigation to the courts of the United • Statés. It is now too late to object to the power of the State court to act in the premises and render judgment.!’ In Eyster v. Gaff (91 U. S. 521), the main qiwNon considered was whether a State court, in which a foreclosure suit was pending at the time of the bankruptcy- of the defendant, had jurisdiction to proceed without bringing the- assignee before the court. The question arose in an action of ejectment instituted by the assignee against the purchaser at the decretal sale in the foreclosure suit. Referring to the authority expressly given the assignee by statute, to-prosecute or defend all suits in which the bankrupt was a party, the court said : “ If there was any reason for interposing, the assignee could have had himself substituted for the bankrupt, or made a defendant on petition. If he chose to let the suit proceed without such defence, he stands as any other. person would on whom the title had fallen since the suit was commenced. It is a mistake' to suppose that the bankrupt law avoids, of its own force, all judicial proceedings in the State or other court. the instant one of the parties is adjudged a bankrupt. There is nothing in the act which sanctions such a propositions The court, in the case before us, had acquired jurisdiction of the' parties and of the subject-matter of the suit. . . . Having such jurisdiction, and performing its duty as. the case stood in that court, we are-at a loss to see how its decree-can be treated as void.” Again : “ The debtor of a bankrupt, or the man who contests the right to real or" }, { "docid": "22928208", "title": "", "text": "supreme court held that he had such a lien, and directed the Ohio property to be sold for its enforcement. The prayer of Compton was for (lie enforcement of his lien by the sale of the whole railroad. If he asked for a sale of the whole property, the court had the right to enforce in his favor that remedy, or any remedy less than that which it thought just and proper. It was therefore within ifs jurisdiction, as invoked by Compton’s prayer, to take so much of the property on which it declared the lien to exist as, in equity, it thought it had the right to take. It took that over which it had territorial jurisdiction. See opinion of court in 45 Ohio St. 592, 623, 16 N. E. 110, and 18 N. E. 380. Whether it erred in this, neither the court below nor this court is vested with the power to decide. It is true That the record does not show that any formal issue was made with reference to the amount of property to be sold to pay the lien, but this can make no difference. The court was hound, before it made an operative decree, to specify the property to be sold to pay the lien (Railroad Co. v. Swasey, 23 Wall. 405), and it was plainly within its power to subject less than that prayed for by the plaintiff to such a sale. The parties were present in court, and might have objected to this form of remedy. Whether they did so, or not, the granting of the remedy, being within the prayer of Compton, was a binding and conclusive adjudication upon the parties in court that such a remedy was proper. This is identically the same issue and cause of action which was in the supreme court of Ohio, and therefore no objection can be made or entertained by the court below, or by this court, to the form of relief there granted, which was or might have been made in the court entering the decree. In Cromwell v. County of Sac," }, { "docid": "15177869", "title": "", "text": "the bankrupt owed the attaching creditors the sums by them respectively claimed, and if the attachments were so issued and levied as, under the laws of the State, to create a valid lien upon the property, it is clear that the State court gave the assignees all that could have been awarded them. It results from what has been said, that the sale, under that decree, — whoever became the purchasers of the attached property, whether third persons or parties to the suits, — divested the assignees of whatever interest or title they had in the property. That decree, having been passed by a court of competent jurisdiction as to parties and subject-matter, and never having been modified by the court which rendered it, or by any court having authority to review its action, the assignees áre precluded from asserting in any other court any interest or-title whatever in the property thus sold. Had the present suit been instituted directly by the assignees, for the purpose of setting aside the sale made under the order of the State court, and of procuring another sale of the attached property, under the orders of the court in bankruptcy, the proceedings in the State court would have been a conclusive answer to such an action; Plainty, therefore, the'present suit by Friedlander, Stich, & Co. is an attempt to invoke the jurisdiction of the District Court sitting in bankruptcy, to the end that they may establish, as against other creditors of Kaufman, their priority of lien upon property, in which, as we have seen, the assignees can now assert no right or interest for the benefit of general or unsecured creditors. Whether appellees have such priority of lien in virtue of their attachment in the law court; whether the proceedings in that court were such as, under the laws of Tennessee, gave them a lien superioi to that acquired by the respective attaching creditors in the suits in the chancery-court; whether, by reason of their petition addressed to the chancellor of the latter court, and his action thereon, they became, in any proper sense," }, { "docid": "22553755", "title": "", "text": "not apply to thfe transfer made by a bankruptcy proceeding. The Bankrupt Act expressly provides that the assignee may prosecute or defend all suits in which the bankrupt was a party at the time he was adjudged a bankrupt. If there was any reason for interposing, the assignee could have had himself substituted for the bankrupt, or made a defendant on petition. If he chose to let the suit proceed without such defence, he stands as any other, person would on whom the title had fallen since the suit was commenced. ■■ It is a mistake to suppose that the Bankrupt Law avoids of its own force all judicial proceedings in the State or other courts the instant one of the parties is adjudged a bankrupt. There is nothing in the act which sanctions such a proposition. The court in the case before us had acquired jurisdiction of the parties and of the subject-matter of the suit. It was competent to administer full justice, and was proceeding, according to the law which governed such a suit, to do so. It could not take judicial notice of the proceedings in,bankruptcy in another court, however seriously they might have affected the rights of parties to the suit already pending. It was the duty of that court to proceed to a decree as between the parties before it, until by some proper pleadings in the case it was informed of the changed relations of any of those parties to the subject-matter of the suit. Having such jurisdiction, and performing its duty as the case stood in that court, we are at a loss to see how its decree can be treated as void. It is almost certain, that if at any stage of the proceeding, before sale or final confirmation, the assignee had intervened, he. would, have been heard to assert any right he had, or set up any defence to the suit. The mere filing in the court of a certificate of his appointment as assignee, with no plea or motion to be made a party or to take part in the" }, { "docid": "15177863", "title": "", "text": "a discharge previously granted was-pleaded in bar of the action. It was said by the court that, “ where the power of a State court to proceed in a suit is subject to be impeached, it cannot be done except upon an intervention by the assignee, who shall state the facts and make the proof necessary to terminate such jurisdiction. ... If the assignee had intervened in the suit, he would have been entitled' to the property or its proceeds, subject to this [the attachment] lien. He did not, however, intervene or take any measures in the case. He allowed the property to be sold under the judgments in the attachment suits, and those under whom the defendant claim! purchased it, obtaining' a perfect title to the same.” In Scott v. Kelly (22 id. 57), it appears that the assignee in bankruptcy became a party to an attachment suit in a State court, commenced shortly before the defendant was declared a bankrupt. The attachment was issued and levied after-.the adjudication. The assignee claimed the attached property, but the decision in the State court was adverse to him. Upon writ of error to this court, we said-that “ the assignee in bankruptcy voluntarily submitted himself and his eights to the jurisdiction of the State court. Being summoned, he appeared without objection, and presented-his claim for adjudication by that court. No eifort was made to remove the litigation to the courts of the United • Statés. It is now too late to object to the power of the State court to act in the premises and render judgment.!’ In Eyster v. Gaff (91 U. S. 521), the main qiwNon considered was whether a State court, in which a foreclosure suit was pending at the time of the bankruptcy- of the defendant, had jurisdiction to proceed without bringing the- assignee before the court. The question arose in an action of ejectment instituted by the assignee against the purchaser at the decretal sale in the foreclosure suit. Referring to the authority expressly given the assignee by statute, to-prosecute or defend all suits in which" }, { "docid": "17781912", "title": "", "text": "between courts of concurrent jurisdiction “that property already in the possession of the receiver of one court cannot rightfully be taken from him without the court’s consent, by the receiver of another court appointed in a subsequent suit,” while having only a qualified application where winding up proceedings are superseded by those in bankruptcy as to which the jurisdiction is not concurrent, still “obtains as a rule of comity” (190 U. S. at page 27, 23 Sup. Ct. 718, 47 L. Ed. 933), pursuant to which the receiver of the bankruptcy court had properly brought his appointment to the knowledge of the State court and requested delivery of the assets. In Eyster v. Gaff, supra, 91 U. S. at page 524, 23 L. Ed. 403, it was said, that the State court having acquired prior jurisdiction for the foreclosure of a mortgage on the debtor’s property, “could not take judicial notice of the proceedings in bankruptcy in another court,” however much it affected the rights of the parties; that “it was the duty of that court to proceed to a decree as between the parties before it until by some proper pleadings in the case it was informed of the changed relations of any of those parties to the subject-matter of the suit”; and that, having such jurisdiction and performing its duty as the case stood in that court, its decree could not be treated as “void.” This rule was expressly followed in Re Rathman, supra, 183 Fed. at pages 923, 929,106 C. C. A. 253, in reference to a proceeding for the foreclosure of a mortgage brought in .a State court after the filing of a petition in bankruptcy. In Jones v. Springer, supra, 226 U. S. at page 155, 33 Sup. Ct. 64, 57 L. Ed. 161, it was said, .citing Eyster v. Gaff and other cases, that where, under an attachment levied in a State court before the petition in bankruptcy was filed, the property had been put into the hands of a receiver, without notice of the petition, it is “not true that all power and" }, { "docid": "12541879", "title": "", "text": "been so much more clearly expressed that we are forced to believe that Congress rejected it. This Board of course has no power to adopt a construction at variance with the meaning which the legislature apparently intended. Bowers V. New York & Albany Lighterage Co., 273 U.S. 346.” See also Louis H. Pink, Supt. of Insurance of New York, 38 B.T.A. 182, 188, where we said: “As we have already endeavored to point out, by reason of section 274(a) we have no jurisdiction where, prior to the time of the filing of a petition with us, there has been the appointment of a receiver for the taxpayer in any receivership proceeding before any court of the United States or of any state or territory or of the District of Columbia.” It provides, in pertinent part, as follows: SEC. 7403. ACTION TO ENFORCE LIEN OR TO SUBJECT PROPERTY TO PAYMENT OF TAX. (a) Filing. — In any case where there has been a refusal or neglect to pay any tax, or to discharge any liability in respect thereof, whether or not levy has been made, the Attorney General or his delegate, at the request of the Secretary or his delegate, may direct a civil action to be filed in a district court of the United States to enforce the lien of the United States under this title with respect to such tax or liability or to subject any property, of whatever nature, of the delinquent, or in which he has any right, title, or interest, to the payment of such tax or liability. ******* (c) Adjudication and Decree. — The court shall, after the parties have been duly notified of the action, proceed to adjudicate all matters involved therein and finally determine the merits of all claims to and liens upon the property, and, in all cases where a claim or interest of the United States therein is established, may decree a sale of such property, by the proper officer of the court, and a distribution of the proceeds of such sale according to the findings of the court in respect" } ]

[ { "docid": "22965799", "title": "", "text": "transportation and commerce, and had been placed in the dry dock to undergo.repairs to fit her to continue in such navigation and commerce. As said in Cope v. Dry Dock Co., 119 U. S. 625, 627, “A ship or vessel used for navigation and commerce, though lying at a wharf and temporarily made fast thereto, as well as her furniture and cargo, are maritime subjects, and are capable of receiving salvage service.” In reason we think it cannot be held that a ship or vessel employed in navigation and commerce is any the less a maritime subject within the admiralty jurisdiction When, for. the purpose of making necessary repairs to fit her for continuance in navigation, she is placed in a dry dock and the water removed from about her, than -would be -such a vessel if fastened to a wharf in a dry harbor, where, by the natural recession of the water by the ebbing of the tide, she for a time might be upon dry land. Clearly in the case last supposed the vessel would not cease to be a subject within the admiralty jurisdiction merely, because for a short period by the operation of nature’s laws, water did not flow about her. Nor is there any difference in principle between a vessel floated into a wet dock, which is so extensively utilized in England for commercial purposes in the loading and unloading of vessels at abutting quays, and the dry dock into which a vessel must be floated for the purpose of being repaired, and from which, after being repaired, she is again floated into an adjacent stream. The status of a vessel is not altered merely because in the one case the water is confined within the dock by means of gates closed when the tide begins to ebb, while in the other the water is removed and the gates are closed to prevent the inflow of the water during the work of repair. It was long ago recognized by this court that a service rendered in making repairs to a ship or vessel, whether in" } ]

[ { "docid": "21533092", "title": "", "text": "Mr. Justice McReynolds delivered the opinion of the Court. Proceeding in admiralty appellant sought to recover damages for personal injuries received while he was employed by respondent and engaged in repairing the steamer “ Starmount.” Upon motion the trial court dismissed the libel, holding that it had no jurisdiction of the cause. The libel alleges that respondent had charge of the work of repairing the shell plates of the steamer, then resting in a floating dock at Twenty-seventh Street, Brooklyn; that while employed by respondent and working oh board appellant suffered injuries through the explosion of a blau torch which the employer negligently permitted to be out of repair. The prayer was for monition according to the course and practice in admiralty and for damages. Since the decree below (June 14,1921) we have decided Great Lakes Dredge & Dock Co. v. Kierejewski, 261 U. S. 479. The opinion there controls this cause unless the injuries sustained by appellant were not the result of tort, committed and effective, on navigable waters. In The Robert W. Parsons, 191 U. S. 17, 33, this Court hold that repairs to a vessel while in an ordinary dry dock were not made on land. The Steamship Jefferson, 215 U. S. 130. Here repairs were made upon the ship while supported by a structure floating on navigable waters. Clearly, the accident did not occur upon land. The doctrine followed in Cope v. Vallette Dry Dock Co., 119 U. S. 625, 627, that “ no structure that is not a ship or vessel is a subject of salvage,” has no application. That admiralty jurisdiction in tort matters depends upon locality is settled. The judgment below must be reversed." }, { "docid": "23169409", "title": "", "text": "Greenville Shipbuilding Corp., 411 F.2d 279 (5th Cir.), cert. denied 396 U.S. 846, 90 S.Ct. 105, 24 L.Ed.2d 96 (1969). As this court pointed out in the Atkins decision: Since Cope v. Vallette Dry-Dock Company, 1887, 119 U.S. 625, 7 S.Ct. 336, 30 L.Ed. 501, if not before, Snyder v. A Floating Dry Dock, D.N.J., 1884, 22 F. 685, it has been clear that a floating drydock is not a “vessel”. Cope v. Vallette Dry Dock Company, supra, held that a floating drydock was not a “vessel” for purposes of salvage. The same considerations are applicable to whether a warranty of seaworthiness is owed. “A fixed structure such as this dry-dock is, not used for the purpose of navigation, is not a subject of salvage service, any more than is a wharf or a warehouse when projecting into or upon the water.” Cope, supra 119 U.S. at 627, 7 S.Ct. at 337. Mere flotation on water does not constitute a structure a “vessel” for purposes of salvage nor warranty of seaworthiness. The elements of risk and exposure to the hazards of the sea, necessary for the operation of and common to both principles, is absent upon floating drydocks. The appellant argues that Cope and Atkins are distinguishable since the dry docks there determined not to be vessels were permanently secured to the bank, while in the instant case the floating construction platform was capable of limited movement and was, in the normal course of its service, towed from point-to-point in the navigable waters off the Belden concrete yard. The permanence of fixation, however, is not the criterion which governs the maritime status of floating dry docks and similar structures. As the Supreme Court pointed out in The Robert W. Parsons the “determinative factors upon the question of jurisdiction [are] the purpose for which the craft was constructed and the business in which it is engaged.” 191 U.S. 17, 30, 24 S.Ct. 8, 12, 48 L.Ed. 73 (1903). Conventional ships and barges as well as such unconventional craft as submersible drilling barges and floating dredges which are designed for navigation and" }, { "docid": "23351430", "title": "", "text": "Kierejewski was a boiler maker employed by a Dredge Company to perform services as called upon. When hurt he was making repairs upon a scow moored in navigable waters. We held this work had direct relation to navigation and commerce. Great Lakes Dredge & Dock Co. v. Kierejewski, supra. In Gonsalves v. Morse Dry Dock & Repair Co., supra, the injured workman was repairing the shell plates of a steamer then in a floating dock. The “ accident did not occur upon land” and we held the rights of the parties must be determined under the maritime law. Robins Dry Dock & Repair Co. v. Dahl, supra, held that as the employee was injured while repairing a completed vessel afloat in navigable waters the rights and liabilities of the parties depended upon the general maritime law and could not be enlarged or impaired by the state statute. In Messel v. Foundation Co., supra, the claimant was injured while repairing a vessel afloat on the Mississippi River. We said — “ The principles applicable to Messel’s recovery, should he have one, must be limited to those which the admiralty law of the United States prescribes, including the applicable section of the Federal Employers Liability Act, incorporated in the maritime law by § 33, c. 250, 41 Stat. 988, 1007.” See London Company v. Industrial Commission, 279 U. S. 109. Repairing a completed ship lying in navigable waters has direct and intimate connection with navigation and commerce as has been often pointed out by this Court. The judgment of the court below must be reversed and the cause remanded for further proceedings not inconsistent with this opinion. Reversed. Mr. Justice Stone, dissenting. I think the judgment below should be affirmed on the authority of Rosengrant v. Havard, 273 U. S. 664 (Feb. 28, 1927), which affirmed, without opinion but on the authority of Grant Smith-Porter Ship Co. v. Rohde, 257 U. S. 469 and Millers’ Indemnity Underwriters v. Braud, 270 U. S. 59, a judgment of the Supreme Court of Alabama, Ex parte Rosengrant, 213 Ala. 202, Ex parte Havard, 211 Ala." }, { "docid": "22965801", "title": "", "text": "or out of the water, was a maritime service. Peyroux v. Howard, 7 Pet. 324. But we need not further pursue the subject, since the error of the contention that a vessel, merely because it is in a dry dock, ceases to be within the admiralty jurisdiction, was quite recently established in The Robert W. Parsons, 191 U. S. 17. In disposing of the proposition we are now. considering it was further said (p. 33): “A further suggestion, however, is made that the contract in this case was not only made on land, but was to be performed on land, and was in fact performed on. land. This argument must necessarily rest upon the assumption that repairs put upon.a vessel while in dry dock are made upon land. We are unwilling to admit this proposition. . , . A dry dock differs from an ordinary dock only in the fact that, it is smaller, and provided with machinery for pumping out the water in order that the vessel may be repaired. All injuries suffered by the hulls of vessels below the water line, by collision’or stranding, must necessarily be repaired in a dry dock, t.o prevent the inflow of wafer, but it has never been supposed, and it is believed-the proposition is now for the first time made, that such repairs were made on land. . . , But as all serious repairs upon the hulls of vessels are made in dry dock, the proposition that such repairs are made, on land would practically deprive the admiralty courts of their largest and most important jurisdiction in connection with repairs. No authorities are cited to this proposition, and it is believed none such exists.” . There is in reason no distinction between the -continued control of admiralty over a vessel when she is in a dry- dock for the purpose of being repaired and the subjection of the vessel when in a dry dock for repairs to the jurisdiction of a court of admiralty for the purpose of passing upon, claims for salvage services; by which it is asserted the vessel" }, { "docid": "13936941", "title": "", "text": "was securely moored to the wharf and had communication with the shore by a gangplank, did not make' her a part of the land or deprive her of the character of a water-borne vessel.” In the case of The Steamship Jefferson, 215 U. S. 130, 30 Sup. Ct. 54, 54 L. Ed. 125, 17 Ann. Cas. 907, which was a case of salvage, and where the jurisdiction of the court was challenged on the ground that at the time the services sued for were rendered the ship “was in a dry dock undergoing repairs, was not on the sea, but was virtually on the shore, and was consequently at such time not an instrumentality of navigation, subject to the dangers and hazards of the sea,” the Supreme Court said, among other things: “By necessary implication it appears from the averments of the libel' that the steamship, before being docked, had been engaged in navigation, was dedicated to the purposes of transportation and commerce, and had been placed in the dry dock to undergo repairs to fit her to continue in such navigation and commerce. As said in Cope v. Dry Dock Co., 119 U. S. 625, 627 [7 Sup. Ct. 336, 337 (30 L. Ed. 501)]: ‘A ship or vessel used for navigation and commerce, though lying at a wharf and temporarily made fast thereto, as well as her furniture and cargo, are maritime subjects, and are capable of receiving salvage service.’ In reason, we think it cannot be held that' a ship or vessel employed in navigation and commerce is any the less a -maritime subject within the admiralty jurisdiction when, for the purpose of making necessary repairs to fit her for continuance in navigation, she is placed in a dry dock and the water removed from about her, than would be such a vessel if fastened to a wharf in a dry harbor, where, by the natural recession of the water by the ebbing of the tide, she for a time might be upon dry land. Clearly, in the case last supposed, the vessel would not cease to" }, { "docid": "23600936", "title": "", "text": "Taylor, 276 U. S. 179, was a case in which a longshoreman was struck by a sling while working on a stage resting solely upon a wharf and projecting a few feet over the water to or near a vessel. He was knocked into the water, where sometime later he was found dead. It was there held that the right of action was controlled by the state and not by the maritime law, since the blow was received on the wharf, which was to be. deemed an extension of the land. And so in Gonsalves v. Morse Dry Dock & Repair Company, 256 U. S. 171, where an employee, engaged in the repair of a vessel resting on a dock floating on navigable waters, was allowed to recover for negligence of the véssel-owner in the explosion of a blau torch negligently permitted to be out of repair. It was held that repairs to a vessel while in an ordinary dry. dock were hot made on land, and that the admiralty jurisdiction in. toft matters was settled by the locality. In Messel v. Foundation Co., 274 U. S. 427, it was held that a boiler-maker, employed to lengthen the smokestack on the deck of a vessel lying in navigable waters, and injured by negligence of the owner through the sudden burst of hot steam, .was entitled to recovery in admiralty or under the saving clause of § 256, by virtue of the Louisiana Civil Code, Art. 2315, declaring that every act whatever of a man that causes damage to another obliges him by whose fault it happened to repair it. This was held, equivalent to the operation of the common law, and so, under the saving clause of § 256, to support a suit for dam ages either in admiralty or common law. The Louisiana Workmen’s Compensation Act gave him no right of action. We have thus examined all the cases in this Court since Southern Pacific Co. v. Jensen, with respect to the efforts to apply the workmen’s compensation acts in admiralty, and we have found nothing in them that" }, { "docid": "13936943", "title": "", "text": "be a subject within the admiralty jurisdiction merely because, for a short period, by the operation of nature’s laws, water did not flow about her. Nor is there any difference in principle between a vessel floated into a wet dock, which is so extensively utilized in England for commercial purposes in the loading and unloading of vessels at abutting quays, and the dry dock, into which a vessel must be floated for the purpose of being repaired, and from which, after being repaired, she is again floated into an adjacent stream. The status of a vessel is not altered merely because, in the one case, the water is confined within the dock by means of gates closed when the tide begins to ebb, while, in the other, the water is removed and the gates are closed, to prevent the inflow of the water during the work of repair. It was long ago recognized by this court that a service rendered in making repairs to a ship or vessel, whether in or out of the water, was a maritime service. Peyroux v. Howard, 7 Pet. 324 [8 L. Ed. 700]. But we need not further pursue the subject, since the error of the contention that a vessel, merely because it is in a dry dock, ceases to be within the admiralty jurisdiction, was quite recently established in The Robert W. Parsons, 191 U. S. 17 [24 Sup. Ct. 8, 48 L. Ed. 73]. In disposing of the proposition we are now considering, it was further said (191 U. S. 33, 24 Sup. Ct. 13, 48 L. Ed. 73): ‘A further suggestion, however, is made that the contract in this case was not only made on land, but, was to be performed'on land, and was, in fact, performed on land. Tbis^ argument must necessarily rest upon the assumption that repairs put. upon' a vessel while in dry dock are made upon land. We are unwilling to admit this proposition. * * * A dry dock differs from an ordinary dock only in the fact that it is smaller, and provided with machinery" }, { "docid": "13936944", "title": "", "text": "was a maritime service. Peyroux v. Howard, 7 Pet. 324 [8 L. Ed. 700]. But we need not further pursue the subject, since the error of the contention that a vessel, merely because it is in a dry dock, ceases to be within the admiralty jurisdiction, was quite recently established in The Robert W. Parsons, 191 U. S. 17 [24 Sup. Ct. 8, 48 L. Ed. 73]. In disposing of the proposition we are now considering, it was further said (191 U. S. 33, 24 Sup. Ct. 13, 48 L. Ed. 73): ‘A further suggestion, however, is made that the contract in this case was not only made on land, but, was to be performed'on land, and was, in fact, performed on land. Tbis^ argument must necessarily rest upon the assumption that repairs put. upon' a vessel while in dry dock are made upon land. We are unwilling to admit this proposition. * * * A dry dock differs from an ordinary dock only in the fact that it is smaller, and provided with machinery for pumping out the water in order that the vessel may be repaired. All .injuries suffered by the hulls of vessels below the water line, by collision or stranding, must necessarily be repaired in a dry dock, to prevent the inflow of water; but it has never been supposed, and it is believed the proposition is now for the first time .made, that such repairs were made on land. * * * ' But, as all serious repairs upon the hulls of vessels are made in dry docks, the proposition that such repairs are made on land would practically deprive the admiralty courts of their largest and most important jurisdiction in connection with repairs. No authorities are cited to this proposition, and it is believed none such exists.’ ” It seems to be now settled that the services of stevedores in loading or unloading a vessel are maritime in character, which is, of course, based upon the theory that the voyage of the vessel does not end in the one case until the cargo has" }, { "docid": "22965798", "title": "", "text": "23 Wall. 1. In that case remuneration, was claimed by the libellants as owners of the steam tug Clarita for salvage services rendered by the tug and the officers and crew, in subduing a fire on board the schooner Clara. While at anchor in the middle of the Hudson River the Clara caught fire from contact with a burning ferryboat, which, after being towed from a ferry slip, had gotten adrift. It was not questioned that the services intrinsically considered were salvage services, but because the injury to the schooner was occasioned by the fault of the tug, whose owner, master and crew' asserted the salvage claim, the right to salvage was denied. And the principles just announced, when duly appreciated, also establish that the Jefferson while in dry dock undergoing repairs was subject to the-jurisdiction of a court of admiralty and liable for a salvage service. By necessary implication it appears from the averments of the libel that the steamship before being docked had been engaged in navigation, was dedicated to the purposes of transportation and commerce, and had been placed in the dry dock to undergo.repairs to fit her to continue in such navigation and commerce. As said in Cope v. Dry Dock Co., 119 U. S. 625, 627, “A ship or vessel used for navigation and commerce, though lying at a wharf and temporarily made fast thereto, as well as her furniture and cargo, are maritime subjects, and are capable of receiving salvage service.” In reason we think it cannot be held that a ship or vessel employed in navigation and commerce is any the less a maritime subject within the admiralty jurisdiction When, for. the purpose of making necessary repairs to fit her for continuance in navigation, she is placed in a dry dock and the water removed from about her, than -would be -such a vessel if fastened to a wharf in a dry harbor, where, by the natural recession of the water by the ebbing of the tide, she for a time might be upon dry land. Clearly in the case last supposed the" }, { "docid": "17283089", "title": "", "text": "In Cope v. Vallette Dry Dock Co. (1887) 119 U. S. 625, 627, 628, 7 Sup. Ct. 336, 337 (30 L. Ed. 501) it was held that a floating dry dock was not a subject of salvage service. In the course of the opinion Mr. Justice Bradley said: “A fixed structure, such as this dry dock is, not used for the purpose of navigation, is not a subject of salvage service, any more than is a wharf or a wai’ehouse when projecting into or upon the water. The fact that it floats on the water does not make it a ship or vessel, and no structure that is not a ship or vessel is a subject of salvage. A ferry bridge is generally a floating structure, hinged or chained to a wharf. This might be the subject of salvage as well as a dry dock. A sailor’s floating bethel, or meeting house, moored to a wharf, and kept in place by a paling of surrounding piles, is in the same category. It can hardly be contended that such a structure is susceptible of salvage service. A ship or vessel, used for navigation and commerce, though lying at a wharf, and temporarily made fast thereto, as well as her furniture and cargo, are maritime subjects, and are capable of receiving salvage service.” In The Robert W. Parsons, 191 U. S. 17, 24 Sup. Ct. 8, 48 L. Ed. 73, this classification of floating dry docks with floating wharves, hinged ferry bridges, etc., is referred to approvingly. In Ruddiman v. A Scow Platform (D. C.) 38 Fed. 158, it was held (syl.): “A floating structure, designed to be moored alongside a wharf, so that carts containing refuse to be dumped into boats can be driven over it from the wharf, is not a vessel within the meaning of the maritime law, and no lien for wharfage attaches to it under that law.” In this case, Judge Brown, at pages 158 and 159 of 38 Fed., said: “To admit of a maritime lien, the scow structure must be a ‘vessel,’ within the meaning" }, { "docid": "22058845", "title": "", "text": "ways upon the land and there repaired a different question might have been presented, as to which we express no opinion; but as all serious'repairs upon the hulls of vessels are made in dry dock, the proposition that such repairs are made on land would practically deprive the' admiralty courts of their largest and most important jurisdiction in connection with repairs. No authorities are cited to this proposition and it is believed none such exist. Suppose, for instance, it were believed that the repairs could' be made upon this vessel without going into dry dock, but it was afterward discovered that the injuries were more extensive and that a dry dock were necessary; would a court of admiralty therfeby be deprived of jurisdiction? Or, suppose such repairs were made in a floating dry dock, as sometimes happens, would they be considered as made upon land or water? Or, suppose they were made in dry dock upon a seagoing vessel? There is no doubt of the proposition that a dry dock itself is not a subject of salvage service or of admiralty jurisdiction, because it is not used for the purpose of navigation. That was settled in Cope v. Vallette Dry Dock Co., 119 U. S. 625. But the case was put upon the express ground that a dry dock was like a ferry-bridge dr sailors’ floating meeting house, and was no more used for the purposes of navigation than a wharf' or a warehouse projecting into or upon the water. 4. Suggestion-is also made that the admiralty jurisdiction of the Federal courts does hot extend, to contracts for the repair of vessels engaged wholly in commerce within a State. It is true that as- late as 1858, in The Fashion (Allen v. Newberry), 21 How. 244, it was held that, under the act of Congress of 1845,- extending jurisdiction of the Federal courts to vessels employed in navigation upon the Great Lakes, between ports and places in different States, it did not extend to the case of a shipment of goods from a port in one State to another port" }, { "docid": "23351429", "title": "", "text": "Great Lakes Dredge & Dock Co. v. Kierejewski, 261 U. S. 479, 480, 481; Gonsalves v. Morse Dry Dock & Repair Co., 266 U. S. 171, 172; Robins Dry Dock Co. v. Dahl, 266 U. S. 449, 457; Messel v. Foundation Co., 274 U. S. 427, 434; Northern Coal & Dock Co. v. Strand, 278 U. S. 142, 144. What work has direct relation to navigation or commerce must, of course, be determined in view of surrounding circumstances as cases arise. In Grant Smith-Porter Co. v. Rohde, supra, claimant when injured was working upon an incompleted vessel— a thing not yet placed into navigation and which had not become an instrumentality of commerce. In Millers’ Indemnity Underwriters v. Braud, 270 U. S. 59, the decedent met his death while cutting off piles driven into the land under navigable water. This had only remote relation to navigation or commerce. Sultan Ry. Co. v. Dept. of Labor, 277 U. S. 135, 136, 137, had relation to the nature of the occupation of men engaged in logging operations. Kierejewski was a boiler maker employed by a Dredge Company to perform services as called upon. When hurt he was making repairs upon a scow moored in navigable waters. We held this work had direct relation to navigation and commerce. Great Lakes Dredge & Dock Co. v. Kierejewski, supra. In Gonsalves v. Morse Dry Dock & Repair Co., supra, the injured workman was repairing the shell plates of a steamer then in a floating dock. The “ accident did not occur upon land” and we held the rights of the parties must be determined under the maritime law. Robins Dry Dock & Repair Co. v. Dahl, supra, held that as the employee was injured while repairing a completed vessel afloat in navigable waters the rights and liabilities of the parties depended upon the general maritime law and could not be enlarged or impaired by the state statute. In Messel v. Foundation Co., supra, the claimant was injured while repairing a vessel afloat on the Mississippi River. We said — “ The principles applicable to Messel’s" }, { "docid": "22220782", "title": "", "text": "“A ship is bom when she is launched, and lives so long as her identity is preserved. Prior to her launching she is a mere congeries of wood and iron — an ordinary piece of personal property — as distinctly a land structure as a house, and subject to mechanics' liens created by staté law enforcible in the state courts. In the baptism of launching she receives her name, and from the moment her keel touches the water she is transformed, and becomes a subject of admiralty jurisdiction.” Tucker v. Alexandroff, 183 U. S. 424, 438. In The Robert W. Parsons, 191 U. S. 17, 33, 34, it was held that the admiralty jurisdiction extended to an action for repairs put upon a vessel while in dry dock; but the question whether this would apply to a vessel hauled up on land for repairs was reserved, the lariguage of the court, by Mr. Justice Brown, being: “Had the vessel been hauled up by ways upon the land and there repaired, a different question might have been presented, as to which we express no opinion; but as-all serious repairs upon the hulls of vessels are made in dry dock, the proposition that such repairs are made on land would practically deprive the admiralty courts of their largest and most important jurisdiction in connection with repairs.” In The Steamship Jefferson, 215 U. S. 130, it was held that the admiralty jurisdiction extends to a claim for salvage service rendered to a vessel while undergoing repairs in a dry dock. What we have said sufficiently indicates the decision that should be reached in the case at bar. The contract as made contemplated the performance of services and the furnishing of the necessary materials for the repairs of the steamship Yucatan. It was an entire contract, intended to take the ship as she was and to discharge her only when completely repaired and fit for the Alaskan voyage. It did not contemplate, as is contended by appellant, either a lease, or a contract for use in the nature of a lease, of the libelant’s" }, { "docid": "23351428", "title": "", "text": "lying in navigable waters; the employer, Iron Works, was engaged in making repairs upon her — painting the engine room and repairing the floor; the claimant went aboard in the course of his employment and was there engaged about the master’s business when hurt. Obviously, considering what we have often said, unless the State Workmen’s Compensation Act changed or modified.the rules of the general maritime law, the rights and liabilities of both the employer and the employee in respect of the latter’s injuries were fixed by those rules and any cause arising out of them was within the admiralty jurisdiction. The insistence in behalf of appellee Span is that when hurt he was doing work of a nature which had no direct relation to navigation or commerce; and to permit application of the State Workmen’s Compensation Act would work no material prejudice to the essential features of the general maritime law as in Grant Smith-Porter Co. v. Rohde, 257 U. S. 469. But so to hold would conflict with principles which we have often announced. Great Lakes Dredge & Dock Co. v. Kierejewski, 261 U. S. 479, 480, 481; Gonsalves v. Morse Dry Dock & Repair Co., 266 U. S. 171, 172; Robins Dry Dock Co. v. Dahl, 266 U. S. 449, 457; Messel v. Foundation Co., 274 U. S. 427, 434; Northern Coal & Dock Co. v. Strand, 278 U. S. 142, 144. What work has direct relation to navigation or commerce must, of course, be determined in view of surrounding circumstances as cases arise. In Grant Smith-Porter Co. v. Rohde, supra, claimant when injured was working upon an incompleted vessel— a thing not yet placed into navigation and which had not become an instrumentality of commerce. In Millers’ Indemnity Underwriters v. Braud, 270 U. S. 59, the decedent met his death while cutting off piles driven into the land under navigable water. This had only remote relation to navigation or commerce. Sultan Ry. Co. v. Dept. of Labor, 277 U. S. 135, 136, 137, had relation to the nature of the occupation of men engaged in logging operations." }, { "docid": "17283088", "title": "", "text": "rendered in raising the sectional floating docks of the respondent are not the subject of salvage compensation, nor are they maritime, so as to give the admiralty jurisdiction of a suit to recover the value of such services.” In this case Judge Dillon, at page 283 of 21 Fed. Cas., said: “The admiralty jurisdiction and the peculiar liens, rights, and remedies which the admiralty recognizes and enforces, spring out of the movable character of the vessels and vehicles which are the instruments of navigation, commerce, and trade. None of the reasons upon which this jurisdiction is founded, and these rights and remedies are given, apply to the stationary docks here in question; and my best judgment is that the controversy1 between these parties belongs to the courts of common law, and not to the court of admiralty.” In Snyder v. A Floating Dry-Dock (1884) 22 Fed. 685, this court (Nixon, J.) held that a floating dry dock with a floating pump was not a vessel constructed or used for the business of navigation or commerce In Cope v. Vallette Dry Dock Co. (1887) 119 U. S. 625, 627, 628, 7 Sup. Ct. 336, 337 (30 L. Ed. 501) it was held that a floating dry dock was not a subject of salvage service. In the course of the opinion Mr. Justice Bradley said: “A fixed structure, such as this dry dock is, not used for the purpose of navigation, is not a subject of salvage service, any more than is a wharf or a wai’ehouse when projecting into or upon the water. The fact that it floats on the water does not make it a ship or vessel, and no structure that is not a ship or vessel is a subject of salvage. A ferry bridge is generally a floating structure, hinged or chained to a wharf. This might be the subject of salvage as well as a dry dock. A sailor’s floating bethel, or meeting house, moored to a wharf, and kept in place by a paling of surrounding piles, is in the same category. It can hardly be" }, { "docid": "23600935", "title": "", "text": "the Alaska case. But the contract in the. Rohde case was non-maritime, the ship was incomplete, and being completed under a non-maritime contract; both parties had made a non-maritime contract with reference to their liabilities, and hot in contemplation of the admiralty law. The Braud case was one of a maritime tort. But it had no characteristic feature of the general maritime law except locality, and it was very like, in its relation to the state law, to the Rohde case. The employment was not maritime,' and the transaction and the circumstances thus seemed to have but one characteristic that was maritime. This was true of the Sultan Company case. Other cases cited, but which seem to have no application here, rest on the undisputed circumstance of locality, in fixing or excluding admiralty jurisdiction. In State Industrial Commission v. Nordenholt Corp., 259 U. S. 263, the tort complained of was committed upon a dock which was an extension -of the land, and was not within the jurisdiction in admiralty at all. Smith & Son v. Taylor, 276 U. S. 179, was a case in which a longshoreman was struck by a sling while working on a stage resting solely upon a wharf and projecting a few feet over the water to or near a vessel. He was knocked into the water, where sometime later he was found dead. It was there held that the right of action was controlled by the state and not by the maritime law, since the blow was received on the wharf, which was to be. deemed an extension of the land. And so in Gonsalves v. Morse Dry Dock & Repair Company, 256 U. S. 171, where an employee, engaged in the repair of a vessel resting on a dock floating on navigable waters, was allowed to recover for negligence of the véssel-owner in the explosion of a blau torch negligently permitted to be out of repair. It was held that repairs to a vessel while in an ordinary dry. dock were hot made on land, and that the admiralty jurisdiction in. toft matters was" }, { "docid": "22220783", "title": "", "text": "been presented, as to which we express no opinion; but as-all serious repairs upon the hulls of vessels are made in dry dock, the proposition that such repairs are made on land would practically deprive the admiralty courts of their largest and most important jurisdiction in connection with repairs.” In The Steamship Jefferson, 215 U. S. 130, it was held that the admiralty jurisdiction extends to a claim for salvage service rendered to a vessel while undergoing repairs in a dry dock. What we have said sufficiently indicates the decision that should be reached in the case at bar. The contract as made contemplated the performance of services and the furnishing of the necessary materials for the repairs of the steamship Yucatan. It was an entire contract, intended to take the ship as she was and to discharge her only when completely repaired and fit for the Alaskan voyage. It did not contemplate, as is contended by appellant, either a lease, or a contract for use in the nature of a lease, of the libelant’s marine railway and machine shop. The use of these was but incidental; the vessel being hauled out, when consistent with the progress of other work of the Shipbuilding Company, for the purpose of exposing the ship’s bottom, to permit of the removal and replacement of the broken plates and the examination of the propeller and tail shaft. In The Planter (Peyroux v. Howard), 7 Pet. 324, 327, 341, the vessel, requiring repairs below the water line as well as above, was to be and in fact was hauled up out of the water; and it was held that the contract for materials furnished and work performed in repairing her under these circumstances was a maritime contract. We think the same rule rriust be applied to the case before us; that the doubt intimated in The Robert W. Parsons, 191 U. S. 17, 33, 34, must be laid aside; and that there is no difference in character as to repairs made upon the hull of a vessel dependent upon whether they are made while she is" }, { "docid": "22678431", "title": "", "text": "the tort and its relationship to maritime navigation. In Rodrigue v. Aetna Casualty & Surety Co., 395 U. S. 352 (1969), for instance, we held that admiralty had no jurisdiction of wrongful-death actions under the Death on the High Seas Act, 41 Stat. 537, 46 U. S. C. § 761 et seq., arising out of accidents on artificial island drilling rigs in the Gulf of Mexico more than a marine league offshore. We relied in that case on the fact that the accidents bore no relation to any navigational function: “The accidents in question here involved no collision with a vessel, and the structures were not navigational aids. They were islands, albeit artificial ones, and the accidents had no more connection with the ordinary stuff of admiralty than do accidents on piers.” Id., at 360. See also The Raithmoor, 241 U. S. 166, 176-177 (1916); Chelentis v. Luckenbach S. S. Co., 247 U. S. 372, 382 (1918); Great Lakes Dredge & Dock Co. v. Kierejewski, 261 U. S. 479, 481 (1923); Robins Dry Dock & Repair Co. v. Dahl, 266 U. S. 449, 457 (1925); London Guarantee & Accident Co. v. Industrial Accident Comm’n, 279 U. S. 109, 123 (1929). Apart from the difficulties involved in trying to apply the locality rule as the sole test of admiralty tort jurisdiction, another indictment of that test is to be found in the number of times the federal courts and the Congress, in the interests of justice, have had to create exceptions to it in the converse situation — i. e., when the tort has no maritime locality, but does bear a relationship to maritime service, commerce, or navigation. See 7A J. Moore, Federal Practice, Admiralty ¶ .325 [4] (2d ed. 1972). For example, in O’Donnell v. Great Lakes Dredge & Dock Co., 318 U. S. 36 (1943), the Court sustained the application of the Jones Act, 41 Stat. 1007, 46 U. S. C. § 688, to injuries to a seaman on land, because of the seaman’s connection with maritime commerce. We relied in that case on an analogy to maintenance and" }, { "docid": "13936942", "title": "", "text": "fit her to continue in such navigation and commerce. As said in Cope v. Dry Dock Co., 119 U. S. 625, 627 [7 Sup. Ct. 336, 337 (30 L. Ed. 501)]: ‘A ship or vessel used for navigation and commerce, though lying at a wharf and temporarily made fast thereto, as well as her furniture and cargo, are maritime subjects, and are capable of receiving salvage service.’ In reason, we think it cannot be held that' a ship or vessel employed in navigation and commerce is any the less a -maritime subject within the admiralty jurisdiction when, for the purpose of making necessary repairs to fit her for continuance in navigation, she is placed in a dry dock and the water removed from about her, than would be such a vessel if fastened to a wharf in a dry harbor, where, by the natural recession of the water by the ebbing of the tide, she for a time might be upon dry land. Clearly, in the case last supposed, the vessel would not cease to be a subject within the admiralty jurisdiction merely because, for a short period, by the operation of nature’s laws, water did not flow about her. Nor is there any difference in principle between a vessel floated into a wet dock, which is so extensively utilized in England for commercial purposes in the loading and unloading of vessels at abutting quays, and the dry dock, into which a vessel must be floated for the purpose of being repaired, and from which, after being repaired, she is again floated into an adjacent stream. The status of a vessel is not altered merely because, in the one case, the water is confined within the dock by means of gates closed when the tide begins to ebb, while, in the other, the water is removed and the gates are closed, to prevent the inflow of the water during the work of repair. It was long ago recognized by this court that a service rendered in making repairs to a ship or vessel, whether in or out of the water," }, { "docid": "22965800", "title": "", "text": "vessel would not cease to be a subject within the admiralty jurisdiction merely, because for a short period by the operation of nature’s laws, water did not flow about her. Nor is there any difference in principle between a vessel floated into a wet dock, which is so extensively utilized in England for commercial purposes in the loading and unloading of vessels at abutting quays, and the dry dock into which a vessel must be floated for the purpose of being repaired, and from which, after being repaired, she is again floated into an adjacent stream. The status of a vessel is not altered merely because in the one case the water is confined within the dock by means of gates closed when the tide begins to ebb, while in the other the water is removed and the gates are closed to prevent the inflow of the water during the work of repair. It was long ago recognized by this court that a service rendered in making repairs to a ship or vessel, whether in or out of the water, was a maritime service. Peyroux v. Howard, 7 Pet. 324. But we need not further pursue the subject, since the error of the contention that a vessel, merely because it is in a dry dock, ceases to be within the admiralty jurisdiction, was quite recently established in The Robert W. Parsons, 191 U. S. 17. In disposing of the proposition we are now. considering it was further said (p. 33): “A further suggestion, however, is made that the contract in this case was not only made on land, but was to be performed on land, and was in fact performed on. land. This argument must necessarily rest upon the assumption that repairs put upon.a vessel while in dry dock are made upon land. We are unwilling to admit this proposition. . , . A dry dock differs from an ordinary dock only in the fact that, it is smaller, and provided with machinery for pumping out the water in order that the vessel may be repaired. All injuries suffered by" } ]

[ { "docid": "8020967", "title": "", "text": "7004(b)(3)) if served on the person named on the proof of claim at the address given for notice.” State Line Hotel, 323 B.R. at 710; In re Ms. Interpret, 222 B.R. 409, 415 (Bankr.S.D.N.Y.1998); In re Rushton, 285 B.R. 76, 81 (Bankr.S.D.Ga.2002) (following Ms. Interpret). In this case, a business entity, i.e., Movant itself, was named on the proof of claim to receive notice; but no particular individual was named. If Movant had intended notice to go to a particular individual, Mov-ant should have named such individual on its proof of claim. Nevertheless, this Court holds that the better analysis leads to the conclusion that mailing as required by Rule 3007 constitutes sufficient and proper service, and that service under Rule 7004 is not required. Rule 9014(a) states that “in a contested matter in a case under the Code not otherwise governed by these rules, relief shall be requested by motion, ...” (Emphasis added.) Subsection (b) goes on to state that such “motion shall be served in the manner provided for service of a summons and complaint by Rule 7004.” An objection to a claim is a contested matter not commenced by a motion and that is otherwise governed by Rule 3007; therefore, Rule 7004 does not govern. Further, since Rule 3007 is the specific rule concerning objections to claims, it controls service of such an objection rather than the more general Rule 9014(b). State Line Hotel, 323 B.R. at 712; In re Hejl, 85 B.R. 399, 400 (Bankr.W.D.Tex.1988). Therefore, under Rule 3007, once a creditor has submitted itself to the court’s jurisdiction by way of filing a proof of claim, “due process is satisfied by mailing the objection and notice to the name and address specified on the proof of claim for the receipt of notices in the case.” In re Hawthorne, 326 B.R. 1, 5 (Bankr.D.D.C.2005). Consequently, by mailing notice to Mov-ant at the address Movant itself provided on its proof of claim, the Debtors gave Movant proper and sufficient notice of its objection to Movant’s proof of claim. If there was an error, it resulted directly from" } ]

[ { "docid": "10557567", "title": "", "text": "3007.01[4]. Second, Rule 9011(b) speaks to “motions” and is preceded by Rule 9011(a), which states in pertinent part: In a contested matter in a case under the Code not otherwise governed by these rules, relief shall be requested by motion, and reasonable notice and opportunity for hearing shall be afforded the party against whom relief is sought, (emphasis added). The emphasized language indicates that where the Federal Rules of Bankruptcy Procedure provide an alternative procedure for a specific type of contested matter, as they do with respect to service of objections to claims under Rule 3007, that alternative procedure applies. Put another way, the Objection is not a “motion” for purposes of Rule 9011(b) and Debtors did not need to comply with the service requirements of that Rule. See, e.g., In re Hawthorne, 326 B.R. 1 (Bankr.D.D.C.2005) (reviewing all of the Federal Rules of Bankruptcy Procedure and finding seven instances of contested matters commenced by objections rather than motions, in two of which, objections to claims and objections to exemptions (Rule 1003(b) ), the applicable Rule specifies the manner of service while noting that in the District of Columbia, when the claimant is the United States or an agency thereof, service of an objection to claim must nevertheless comply with Rule 7001 but only because D.C’s L.B.R. 3007-1 requires such service (there is no comparable Local Bankruptcy Rule in the Western District of Pennsylvania)); In re Hensley, 356 B.R. 68 (Bankr.D.Kan.2006); In re Anderson, 330 B.R. 180 (Bankr.S.D.Tex.2005). In the present case the Debtor mailed a copy of the Objection and Notice of Hearing to the address indicated on the Proof of Claim and that is all, that is required by the Federal Rules of Bankruptcy Procedure. (c) The Court has jurisdiction to hear the Objection Finally, the argument is made that because the United States was not properly served, the Court lacks the necessary personal jurisdiction to hear the Objection. This argument is moot in light of the determinations that the IRS is a proper party respondent in the Objection and proper service has been made. Moreover, the Court" }, { "docid": "8020965", "title": "", "text": "152 B.R. 136, 139 (Bankr.S.D.Tex.1993), following In re Bucknum, 951 F.2d 204, 207 (9th Cir.1991), and Osborn v. Ricketts (In re Ricketts), 80 B.R. 495, 497 (9th Cir. BAP 1987). The issue, then, is not whether notice was received but rather whether it was properly sent. Id. The United States Supreme Court has held that notice must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950) (citations omitted); In re Christopher, 28 F.3d 512, 516 and 519 (5th Cir.1994). Counsel for the Debtors sent notice by U.S. mail to Movant at the address which Movant itself provided on its proof of claim expressly for the purpose of receiving notice. Notice to such address meets the requirements of Bankruptcy Rule 3007, which the courts require as a minimum standard. In re Laurah Ann Morton, No. 02-10507, 2003 WL 23744636, at *2, 2003 Bankr.LEXIS 1464, at *4 (Bankr.N.D.Tex. Nov. 10, 2003). Some courts have gone further and held that objections to claims, as contested matters, must be served in compliance with Bankruptcy Rule 7004. Fed. R. BaNKR. P. 9014(b); In re Tudor, 282 B.R. 546, 549 (Bankr.S.D.Ga.2002); In re Boykin, 246 B.R. 825, 827 (Bankr.E.D.Va.2000). Bankruptcy Rule 7004(b)(3) provides that service may be made within the U.S. by first class mail upon a corporation by mailing a copy of the summons and complaint [i.e., the objection] to the attention of “an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process .... ” Under this theory, the Debtors’ notice to Movant was sufficient and proper because Movant had, by its own hand or that of its agent, blessed the address on its proof of claim as the correct address for notice to it or, by implication, its agent. Consequently, “an objection to a proof of claim is properly served on a corporation (under Rule" }, { "docid": "12811222", "title": "", "text": "arise out of the notice of appearance and request for service filed pursuant to Rule 9010. “The procedure for filing objections to the allowance of claims is established in part by Fed. R, Bankr.P. 3007.” United States v. Levoy (In re Levoy), 182 B.R. 827, 833 (9th Cir. BAP 1995). The objection must be in writing and filed with the bankruptcy court, and a copy of the objection must be mailed or otherwise delivered to the claimant. See Rule 3007. As a bankruptcy appellate panel has recently noted, Rule 3007 does not provide the manner for service of the objection to a proof of claim. See Levoy, 182 B.R. at 833. “Most authorities agree that claim objections are contested matters.” Id. at 834. See also United States v. Oxylance Corp., 115 B.R. 380, 380 (N.D.Ga.1990); 9 Collier On Bankruptcy, ¶3007.01[1] (Lawrence D. King ed., 15th ed.1997). Cf. Advisory Committee Note accompanying Rule 3006 (1983) (providing that “[t]he filing of a claim does not commence an adversary proceeding but the filing of an objection to the claim initiates a contest that must be disposed of by the court”). Thus, as a contested matter, Rule 9014 applies to objections to claims. See Advisory Committee Note accompanying Rule 3007 (providing that “[t]he contested matter initiated by an objection to a claim is governed by rule 9014”). Rule 9014, in turn, makes applicable Rule 7004. In short, these bankruptcy rules require service of a claim objection be made on corporate claimants. Relying on these three rule provisions, Debtor contends that it had no obligation to communicate with CDC’s counsel concerning the Objection, let alone serve counsel with a copy of the Objection. According to Debtor, had the rule makers intended to require service on an attorney appearing on behalf of a corporate party, they would have expressly provided so, as they did when they amended Rule 7004 in 1994 to require service on insured depository institutions be effected on their counsel, if any has appeared. (Doc. # 1562 at 12) (citing Rule 7004(h)(1)) Since no similar provision was enacted with respect to a corporate" }, { "docid": "1024616", "title": "", "text": "Rule 7004. Any paper served after the motion shall be served in the manner provided by Rule 5(b) F.R.Civ.P. [Italics added.] For reasons developed below, the court concludes that the first sentence of Rule 9014(b) does not apply to a contested matter commenced by an objection when the rule governing that objection sets forth the required manner of service of the objection. The contested matters the court has found that are not commenced by a motion are objections to: a claim (Rule 3007), confirmation of a chapter 13 plan (Rule 3015(f)), a disclosure statement (Rule 3017(a)), confirmation of a chapter 11 plan (Rule 3020(b)), exemptions (Rule 4003(b)), notice of a proposed use, sale, or lease of property (Rule 6004(b)), and notice of a proposed abandonment or disposition of property (Rule 6007(a)). Rules 3007 and 4003(b) are the only objections for which the applicable rule specifies the manner of service. Rule 3007, as already noted, requires that “[a] copy of the objection with notice of the hearing thereon shall be mailed or otherwise delivered to the claimant.” Although Rule 3007 does not use the term “serve,” plainly the mailing it requires is a form of service. Similarly, Rule 4003(b) specifies that the objection to exemptions must be “delivered or mailed to the trustee, the person filing the list [meaning the debtor or a dependent of the debtor, as the case may be], and the attorney for that person,” again a form of service. Rule 3007, as the specific rule dealing with objections to claims, controls service of such an objection, not Rule 9014(b). Jorgenson v. State Line Hotel, Inc. (In te State Line Hotel, Inc.), 323 B.R. 703, 2005 WL 857471 (9th Cir. BAP Mar.29, 2005); In re Hejl, 85 B.R. 399 (Bkrtcy.W.D.Tex.1988). Similarly, Rule 4003(b)’s rule regarding serving an objection to exemptions, as the more specific rule, ought to trump Rule 9014(b)’s rule regarding serving a motion commencing a contested matter. If Rule 9014(b) controlled service of an objection, there would be no need to require mailing of an objection to claim under Rule 3007 or to require mailing or" }, { "docid": "23316778", "title": "", "text": "on BanKRuftcy, § 3007.08[1] at 3007-3 (15th ed. 1994); In re Zumbrun, 88 B.R. 250, 252 (9th Cir. BAP 1988) (same due process and service requirements are applicable to both bankruptcy rules 7004 and 9014); Oxylance Corp., 115 B.R. at 381; Morrell, 69 B.R. at 149; In re Simms, 33 B.R. 792, 793 (N.D.Ga.1983) (objection to IRS proof of claim was adversary proceeding subject to former Rule 704). Thus, we hold that Fed.R.Bankr.P. 9014 applies to objections to claims. Having determined that Debtors were obligated to serve the United States in the manner provided by Fed.R.Bankr.P. 7004, that rule provides for service upon the United States by mailing a copy of the summons and complaint to the United States attorney for the district in which the action is brought and also the Attorney General of the United States at Washington, District of Columbia, and in any action attacking the validity of an order of an officer or an agency of the United States not made a party, by also mailing a copy of the summons and complaint to such officer or agency. Fed.R.Bankr.P. 7004(b)(4). The United States contends that Debtors’ notice of its objection and hearing was defective because: 1) the mailing address for the United States Attorney General in Washington, D.C., did not contain a street address, or a zip code as required by Local Bankruptcy Rule 105(l)(a) for the Central District of California; 2) the objection was not received by the local district office of the United States Attorney or by the Attorney General in Washington, D.C. Other than the local bankruptcy court rule, which is discretionary with the bankruptcy court, the United States has not provided us with any authority for its position that the mailing to the Attorney General in Washington, D.C., must contain a street address and zip code to comply with Fed.R.Civ.P. 7004(b)(4). We, likewise, were unable to find a case on point. Nevertheless, the fact that the copy of the objection was not returned (per Moore’s declaration) and the fact that the Justice Department in Washington, D.C., received the May 11, 1992 order," }, { "docid": "16691565", "title": "", "text": "ORDER SHOOB, District Judge. The sole issue in this bankruptcy appeal is whether it is necessary to serve notice of objections to claims to the local United States Attorney and the Attorney General of the United States when the claimant is the Internal Revenue Service. In this case, appellee delivered its objection and hearing notice to the Internal Revenue Service (“IRS”) alone. The bankruptcy court held that the service was adequate and disallowed the priority claim made by the government. For the reasons stated below, the Court reluctantly must reverse. Bankruptcy Rule 3007 governs objections to claims. It states in pertinent part that “[a] copy of the objection with notice of the hearing thereon shall be mailed or otherwise delivered to the claimant.” Because objections to claims are contested matters, however, Bankruptcy Rule 3007 must be read in conjunction with Bankruptcy Rule 9014. That rule states: In a contested matter in a case under the Code not otherwise governed by these .rules, relief shall be requested by motion, and reasonable notice and opportunity for hearing shall be afforded the party against whom relief is sought.... The motion shall be served in the manner provided for service of a summons and complaint by Rule 7004.... Bankruptcy Rules 7004(b)(4) and (b)(5) require that the United States Attorney and the Attorney General of the United States receive service whenever the United States or an officer or agency of the United States is a party to an action. Appellant contends that the bankruptcy court erred when it did not apply Bankruptcy Rules 9014 and 7004 in this case. It cites as support two cases from this district and one case from the Northern District of California. See United States v. Simms, 33 B.R. 792 (N.D.Ga.1983) (Ward, J.); In re Rowe, No. C86-1848A, slip op. (N.D.Ga.1986) (Freeman, J.); In re Morrell, 69 B.R. 147 (N.D. Cal.1986). Appellee maintains that Bankruptcy Rules 9014 and 7004 only apply in contested matters “not otherwise governed by these rules,” precluding their application in this case because Bankruptcy Rule 3007 governs. As a result, appellee claims the bankruptcy court correctly" }, { "docid": "4890022", "title": "", "text": "by registered or certified mail to both the agency and to the Attorney General of the United States at Washington, District of Columbia. Some courts have held that Bankruptcy Rule 9014 requires notice of a claim objection be served in accord with Bankruptcy Rule 7004. Generally these opinions involve no analysis, and often the claimant is the United States or an agency. Perhaps the most interesting case holding that mailing of a claim objection to an federal agency address stated in the proof of claim is not sufficient is In re Hawthorne. It held that mailing a notice to the creditor, other than the United States, at the address on the proof of claim is sufficient. The court’s analysis was thorough and well reasoned. It concluded that generally the service requirements of Bankruptcy Rule 7004 do not apply to claims litigation because an objection to claim is initiated by a notice, not a motion, and Bankruptcy Rule 9014 addresses service of a motion. Also, Bankruptcy Rule 3007, the rule governing the objection, sets forth its own manner of service, thereby invoking the “not otherwise governed by these rules” phrase of Bankruptcy Rule 9014(b). Bankruptcy Rule 3007, as the specific rule dealing with objection to claims, was held to control service of such an objection. The court found that the “nature of the claims process shows that service under Rule 7004 was not intended” and that requiring service under Rule 7004 “would subject the estate to considerable uncertainty and expense in contrast to permitting notice under Rule 3007 to suffice.” It therefore held that service upon the creditor before the court, a private entity, under Rule 3007 was sufficient. The Hawthorne court, however, carved out an exception for notice when the creditor is an agency of the United States based upon a local rule, which apparently required service under Bankruptcy Rule 7004. The court stated: While this court continues to require service of an objection to claim under Rule 7004 when the claimant is the United States or an agency thereof, it does so under LBR 3007-1 in recognition of the" }, { "docid": "4890032", "title": "", "text": "L.L.C. (In re Barker), 306 B.R. 339, 348 (Bankr.E.D.Cal.2004) (holding Rule 3007 controls • and mailing of notice to the address stated on the proof of claim satisfies due process). . In re Barker, 306 B.R. at 347 (quoting Official Form 10). . Id. . D. Kan. Bk. S.O. 99-2(b)(2000). . D. Kan. L.B.R. 1007(b). 1 (2000). . Id. . Mesta Machine Co. v. Mellon Bank, N.A. (In re Mesta Machine Co.), 30 B.R. 178, 181 (Bankr.W.D.Pa.1983). . 225 B.R. 667 (Bankr.D.Iowa 1998). . Fairchild v. Internal Revenue Serv. Of United States (In re Fairchild), 969 F.2d 866, 868 (10th Cir.1992); see 4 Collier on Bankruptcy ¶ 502.02[3][b](Alan N. Resnick & Henry J. Sommer eds-in-chief, 15th ed. Rev.2005) and Fed. R. Bankr.P. 9014, Advisory Committee Note (1983) (\"For example, the filing of an objection to a proof of claim ... creates a dispute which is a contested matter.\"). . Fed. R. Bankr P. 7004. . E.g., United States v. Hernandez (In re Hernandez), 173 B.R. 430, 431 (N.D.Ala.1994) (holding that an objection to claim of IRS must be served in accord with Rule 7004); In re Levoy, 182 B.R. at 833-34 (holding objection to claim of IRS must be served under Rule 7004); Conseco Finance Servicing Corp. v. Rushton (In re Rushton), 285 B.R. 76, 81 (Bankr.S.D.Ga.2002) (holding that mailing an objection to a proof of claim to the address on the proof of claim is insufficient where it was not sent to the attention of an officer, managing or general agent, or any other agent authorized by appointment or law to receive service, as required by Rule 7004(b)(3)). . 326 B.R. 1 (Bankr.D.D.C.2005). . Id. at 4-5. . Id. at 4. . Id. . Id. at 5. . Id. at 5. The local rules are not quoted or discussed in the opinion. . 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2866 (2d ed.1995); see Orner v. Shalala, 30 F.3d at 1310 (\"Rule 60(b)(4), which provides relief from void judgments, ‘is not subject to any time limitation.’ ”); In re Levoy," }, { "docid": "16691566", "title": "", "text": "shall be afforded the party against whom relief is sought.... The motion shall be served in the manner provided for service of a summons and complaint by Rule 7004.... Bankruptcy Rules 7004(b)(4) and (b)(5) require that the United States Attorney and the Attorney General of the United States receive service whenever the United States or an officer or agency of the United States is a party to an action. Appellant contends that the bankruptcy court erred when it did not apply Bankruptcy Rules 9014 and 7004 in this case. It cites as support two cases from this district and one case from the Northern District of California. See United States v. Simms, 33 B.R. 792 (N.D.Ga.1983) (Ward, J.); In re Rowe, No. C86-1848A, slip op. (N.D.Ga.1986) (Freeman, J.); In re Morrell, 69 B.R. 147 (N.D. Cal.1986). Appellee maintains that Bankruptcy Rules 9014 and 7004 only apply in contested matters “not otherwise governed by these rules,” precluding their application in this case because Bankruptcy Rule 3007 governs. As a result, appellee claims the bankruptcy court correctly held that service to the IRS was sufficient. See In re Hejl, 85 B.R. 399 (W.D. Tex.1988). Appellant has the better of this argument for a number of reasons, not the least of which is that it relies on authority from this district and appellee does not. In addition, the logical result of appellee’s position is that Bankruptcy Rule 9014 does not apply to objections to claims (since they are addressed by Bankruptcy Rule 3007). As appellee must concede, however, the advisory committee note specifically states that “[t]he contested matter initiated by an objection to a claim is governed by rule 9014_” Finally, and perhaps most important, the decision of the bankruptcy court and appellee’s argument both ignore the well-settled principle that the IRS cannot sue and be sued and that the proper party in actions involving federal taxes is the United States of America. See generally Blackmar v. Guerre, 342 U.S. 512, 514, 72 S.Ct. 410, 411, 96 L.Ed. 534 (1952). As a result, even if the Court accepted appellee’s claim that only service" }, { "docid": "7471963", "title": "", "text": "no reason to presume that Bonjorno overruled Commonwealth. . Neither the Code nor the Bankruptcy Rules establish a deadline within which objections to claims must be made. 9 Collier on Bankruptcy ¶3007.01[5] (15th ed. rev.1999). It is therefore possible that \"a dividend may be paid on a [deemed allowed] claim which may thereafter be disallowed on objection made pursuant to [Bankruptcy Rule 3007].” Advisory Committee Note (1983) to F.R.Bankr.P. 3007. Moreover, \"[t]he amount of the dividend paid [on such claim] before .. . disal-lowance ... would be recoverable by the trustee in an adversary proceeding.” Id. However, this procedural aspect of the claims-allowance process does not change the fact that the Code's rules of distribution apply equally to all unsecured claims, regardless of whether those claims are deemed allowed, or allowed pursuant to a § 502(b) order. . See In re Adcom, Inc., 89 B.R. 2 (D.Mass.1988); Federal Savings & Loan Corp. v. Moneymaker (In re A & L Properties), 96 B.R. 287 (C.D.Cal.1988); In re Carter, 220 B.R. 411 (Bankr.D.N.M.1998); In re Huang, 192 B.R. 184 (Bankr.N.D.Ill.1996); In re Boehm, 202 B.R. 99, 100 (Bankr.N.D.Ill.1996); In re Schoeneberg, 156 B.R. 963 (Bankr.W.D.Tex.1993); Kellogg v. United States (In re West Texas Marketing Corp.), 155 B.R. 399, 402-03 (Bankr.N.D.Tex.1993); In re Beck, 128 B.R. 571 (Bankr.E.D.Okla.1991); In re Rivera, 116 B.R. 17 (Bankr.D.P.R.1990); In re Boyer, 90 B.R. 200 (Bankr.D.S.C.1988). . See In re Beguelin, 220 B.R. 94 (9th Cir. BAP 1998); In re Gaines, 178 B.R. 101 (Bankr.W.D.Va.1995); In re David Green Property Mgmt., 164 B.R. 92 (Bankr.W.D.Mo.1994); In re Chiapetta, 159 B.R. 152 (Bankr.E.D.Pa.1993); In re Melenyzer, 143 B.R. 829 (Bankr.W.D.Tex.1992); In re Godsey, 134 B.R. 865 (Bankr.M.D.Tenn.1991); In re Laymon, 117 B.R. 856, 864 (Bankr.W.D.Tex.1990), aff'd, No. A-90-CA-1025, 1991 WL 349624 (W.D.Tex. Mar. 22, 1991), rev’d on other grounds, 958 F.2d 72 (5th Cir.1992). See also Crawford Corp. v. Crawford, 836 F.2d 549, 1987 WL 30588 (6th Cir. Dec. 31, 1987) (unpublished); Wasserman v. City of Cambridge, 151 B.R. 4 (D.Mass.1993). . This statement could surely serve as the poster-child for the kind of haphazard subjective method for" }, { "docid": "8020966", "title": "", "text": "*2, 2003 Bankr.LEXIS 1464, at *4 (Bankr.N.D.Tex. Nov. 10, 2003). Some courts have gone further and held that objections to claims, as contested matters, must be served in compliance with Bankruptcy Rule 7004. Fed. R. BaNKR. P. 9014(b); In re Tudor, 282 B.R. 546, 549 (Bankr.S.D.Ga.2002); In re Boykin, 246 B.R. 825, 827 (Bankr.E.D.Va.2000). Bankruptcy Rule 7004(b)(3) provides that service may be made within the U.S. by first class mail upon a corporation by mailing a copy of the summons and complaint [i.e., the objection] to the attention of “an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process .... ” Under this theory, the Debtors’ notice to Movant was sufficient and proper because Movant had, by its own hand or that of its agent, blessed the address on its proof of claim as the correct address for notice to it or, by implication, its agent. Consequently, “an objection to a proof of claim is properly served on a corporation (under Rule 7004(b)(3)) if served on the person named on the proof of claim at the address given for notice.” State Line Hotel, 323 B.R. at 710; In re Ms. Interpret, 222 B.R. 409, 415 (Bankr.S.D.N.Y.1998); In re Rushton, 285 B.R. 76, 81 (Bankr.S.D.Ga.2002) (following Ms. Interpret). In this case, a business entity, i.e., Movant itself, was named on the proof of claim to receive notice; but no particular individual was named. If Movant had intended notice to go to a particular individual, Mov-ant should have named such individual on its proof of claim. Nevertheless, this Court holds that the better analysis leads to the conclusion that mailing as required by Rule 3007 constitutes sufficient and proper service, and that service under Rule 7004 is not required. Rule 9014(a) states that “in a contested matter in a case under the Code not otherwise governed by these rules, relief shall be requested by motion, ...” (Emphasis added.) Subsection (b) goes on to state that such “motion shall be served in the manner provided for service of a summons" }, { "docid": "20661991", "title": "", "text": "Wireless, L.P., d/b/a Cellular One, including an account held by the Debtor. On June 28, 2000, Cellular One filed Proof of Claim number 3 in the amount of $ 180. The Debtor argues that by filing this proof of claim, Cellular One placed itself under the jurisdiction of the Court. The Debtor further contends that Alltel stepped into the shoes of Cellular One when it purchased the assets of Southwestco Wireless, L.P. By extension, the Court obtained jurisdiction over Alltel when Cellular One filed a proof of claim in this case. . United States v. Levoy (In re Levoy), 182 B.R. 827 (9th Cir. BAP 1995). . 356 B.R. 68 (Bankr.D.Kan.2006). . In re Levoy, 182 B.R. at 832; In re Hensley, 356 B.R. at 72-73. . In re Levoy, 182 B.R. at 832; see also In re Hensley, 356 B.R. at 73 (holding that in claim objection cases, personal jurisdiction over a creditor is established by filing a proof of claim). . In re Swanson, 343 B.R. 678, 684 (Bankr.D.Kan.2006) (\"in Hensley, the matter was controlled by Rule 3007, which did not require service of a claim objection in the manner specified by Rule 7004 because the objection had not been joined with a demand for relief of the kind that requires an adversary proceeding.”). . In re Hensley, 356 B.R. at 80. . Id. . Id. . Id. at 75. . 63 F.Supp.2d 918, 921 (C.D.Ill.1999). . Id. . Id. at 918. . Id. at 919. . Id. . Id. . Herman, 63 F.Supp.2d at 920-921. . Debtor's Resp. to Mot. to Reopen ¶ 8. . 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). . Id. . In re Levoy, 182 B.R. at 832. . Mullane, 339 U.S. at 314, 70 S.Ct. 652. . See Fed. R. Bankr.P. 3007 compare Fed. R. Bankr.P. 7004. . At the hearing, the Debtor's counsel argued that when the Judgment was entered, the custom and practice did not require the Debtor to comply with the notice and service requirements of Rule 7004. The Court disagrees, and notes that the" }, { "docid": "23316777", "title": "", "text": "to the claimant at least 30 days prior to the hearing. It further provides that if an objection to a claim is joined with a demand for relief of the kind specified in Rule 7001, then it becomes an adversary proceeding. The parties disagree as to the type of notice required under Rule 3007. The United States argued that Fed.R.Bankr.P. 7004 applies, while Debtors argued that under Langenkamp, the United States was not required to be served with a summons or other pleading. We do not find merit in Debtors’ argument and agree that the position of the United States expresses the correct, majority viewpoint on this issue. Fed.R.Bankr.P. 3007 does not provide the manner for service of the objection to a proof of claim. However, the rule’s Advisory Committee Note states: “The contested matter initiated by an objection to a claim is governed by rule 9014-” Fed.R.Bankr.P. 9014, which pertains to contested matters, in turn, makes applicable the service provisions of Fed.R.Bankr.P. 7004. Most authorities agree that claim objections are contested matters. 8 Collieh on BanKRuftcy, § 3007.08[1] at 3007-3 (15th ed. 1994); In re Zumbrun, 88 B.R. 250, 252 (9th Cir. BAP 1988) (same due process and service requirements are applicable to both bankruptcy rules 7004 and 9014); Oxylance Corp., 115 B.R. at 381; Morrell, 69 B.R. at 149; In re Simms, 33 B.R. 792, 793 (N.D.Ga.1983) (objection to IRS proof of claim was adversary proceeding subject to former Rule 704). Thus, we hold that Fed.R.Bankr.P. 9014 applies to objections to claims. Having determined that Debtors were obligated to serve the United States in the manner provided by Fed.R.Bankr.P. 7004, that rule provides for service upon the United States by mailing a copy of the summons and complaint to the United States attorney for the district in which the action is brought and also the Attorney General of the United States at Washington, District of Columbia, and in any action attacking the validity of an order of an officer or an agency of the United States not made a party, by also mailing a copy of the summons" }, { "docid": "1024617", "title": "", "text": "claimant.” Although Rule 3007 does not use the term “serve,” plainly the mailing it requires is a form of service. Similarly, Rule 4003(b) specifies that the objection to exemptions must be “delivered or mailed to the trustee, the person filing the list [meaning the debtor or a dependent of the debtor, as the case may be], and the attorney for that person,” again a form of service. Rule 3007, as the specific rule dealing with objections to claims, controls service of such an objection, not Rule 9014(b). Jorgenson v. State Line Hotel, Inc. (In te State Line Hotel, Inc.), 323 B.R. 703, 2005 WL 857471 (9th Cir. BAP Mar.29, 2005); In re Hejl, 85 B.R. 399 (Bkrtcy.W.D.Tex.1988). Similarly, Rule 4003(b)’s rule regarding serving an objection to exemptions, as the more specific rule, ought to trump Rule 9014(b)’s rule regarding serving a motion commencing a contested matter. If Rule 9014(b) controlled service of an objection, there would be no need to require mailing of an objection to claim under Rule 3007 or to require mailing or delivery under Rule 4003 in the case of an objection to exemptions. If the first sentence of Rule 9014(b) were intended to apply to objections to claims (or objections to exemptions), the sentence could have readily referred to “the paper commencing a contested matter” instead of to “the motion.” Moreover, as next discussed, the nature and practicalities of the claims process demonstrate that the rule-makers did not intend to require service of an objection to claim under Rule 7004. First, the nature of the claims process shows that service under Rule 7004 was not intended. When a creditor files a proof of claim, it is analogous to a complaint, subjecting the creditor to the jurisdiction of the court to adjudicate the validity of its claim. Kline v. Zueblin, AG (In re American Export Group Int’l Servs., Inc.), 167 B.R. 311, 313-15 (Bankr.D.D.C.1994). “Every person submitting himself to the jurisdiction of the bankruptcy] court in the progress of the cause, for the purpose of having his rights in the estate determined, makes himself a party to" }, { "docid": "4890031", "title": "", "text": "(holding by filing proof of claim court acquired jurisdiction over a foreign corporation). . Grun v. Pneumo Abex Corp., 163 F.3d 411, 423 (7th Cir.1998). . 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). . United States v. One Toshiba Color Television, 213 F.3d 147, 152 (3rd Cir.2000). . Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. at 314-315, 70 S.Ct. 652(citations omitted). . Hewlett-Packard Puerto Rico v. Thomas Indus., Inc., 174 F.R.D. 6, 8 (D.P.R.1997). . Preblich v. Battley, 181 F.3d 1048, 1051 (9th Cir.1999). . Herman v. Miller, 63 F.Supp.2d 918, 921 (C.D.Ill.1999). . Fed. R. Bankr.P. 3007. . E.g., Jorgenson v. State Line Hotel, Inc. (In re State Line Hotel, Inc.), 323 B.R. 703, 711-713 (9th Cir.BAP2005) (holding service of a claim objection is governed by Rule 3007 and due process is not violated if sent to the address on the proof of claim); In re Anderson, 330 B.R. 180, 186-187 (Bankr.S.D.Tex.2005) (holding mailing as required by Rule 3007 constitutes sufficient and proper service); and Dellamarggio v. B-Line, L.L.C. (In re Barker), 306 B.R. 339, 348 (Bankr.E.D.Cal.2004) (holding Rule 3007 controls • and mailing of notice to the address stated on the proof of claim satisfies due process). . In re Barker, 306 B.R. at 347 (quoting Official Form 10). . Id. . D. Kan. Bk. S.O. 99-2(b)(2000). . D. Kan. L.B.R. 1007(b). 1 (2000). . Id. . Mesta Machine Co. v. Mellon Bank, N.A. (In re Mesta Machine Co.), 30 B.R. 178, 181 (Bankr.W.D.Pa.1983). . 225 B.R. 667 (Bankr.D.Iowa 1998). . Fairchild v. Internal Revenue Serv. Of United States (In re Fairchild), 969 F.2d 866, 868 (10th Cir.1992); see 4 Collier on Bankruptcy ¶ 502.02[3][b](Alan N. Resnick & Henry J. Sommer eds-in-chief, 15th ed. Rev.2005) and Fed. R. Bankr.P. 9014, Advisory Committee Note (1983) (\"For example, the filing of an objection to a proof of claim ... creates a dispute which is a contested matter.\"). . Fed. R. Bankr P. 7004. . E.g., United States v. Hernandez (In re Hernandez), 173 B.R. 430, 431 (N.D.Ala.1994) (holding that an objection to claim of" }, { "docid": "10557568", "title": "", "text": "Rule specifies the manner of service while noting that in the District of Columbia, when the claimant is the United States or an agency thereof, service of an objection to claim must nevertheless comply with Rule 7001 but only because D.C’s L.B.R. 3007-1 requires such service (there is no comparable Local Bankruptcy Rule in the Western District of Pennsylvania)); In re Hensley, 356 B.R. 68 (Bankr.D.Kan.2006); In re Anderson, 330 B.R. 180 (Bankr.S.D.Tex.2005). In the present case the Debtor mailed a copy of the Objection and Notice of Hearing to the address indicated on the Proof of Claim and that is all, that is required by the Federal Rules of Bankruptcy Procedure. (c) The Court has jurisdiction to hear the Objection Finally, the argument is made that because the United States was not properly served, the Court lacks the necessary personal jurisdiction to hear the Objection. This argument is moot in light of the determinations that the IRS is a proper party respondent in the Objection and proper service has been made. Moreover, the Court would note the longstanding general principle that a creditor who files a bankruptcy proof of claim thereby subjects itself to the jurisdiction of the court in which it was filed. Wiswall v. Campbell, 93 U.S. 347, 351, 3 Otto 347, 23 L.Ed. 923 (1876). This principle also applies when the creditor is the IRS. See, e.g., In re Stokes, 320 B.R. 821, 825 (Bankr.D.Md.2004). The IRS, having filed a Proof of Claim, may not now question this Court’s jurisdiction to hear and decide the Objection thereto. CONCLUSION The Court, having been down a similar path on a number of prior occasions on matters involving the IRS, has approached this decision on a very practical level. If the Motion is not denied now and the matter proceeds to the July 2, 2008 hearing with the Motion still pending, one of two thing is likely to happen. In one scenario, the IRS will hold strongly to the position espoused in the Motion, and to avoid any issues of service, the Court will direct the Debtors to go" }, { "docid": "12924441", "title": "", "text": "the services may have been rendered post-petition.” (internal citations omitted)); In re Ransom, 361 B.R. 895, 902 (Bankr.D.Mont.2007) (acknowledging that a creditor may be able to disclose all post-petition fees and costs in a proof of claim to the date of the filing the proof of claim, but clarifying that a fee application for post-petition fees and costs may more adequately provide all necessary information so the Court can independently determine the reasonableness of the fees and costs); In re Madison, 337 B.R. 99, 103-104 (Bankr.N.D.Miss.2006) (\"This court finds that the disclosure of attorney fees, costs and other charges claimed by a creditor may be made in most routine circumstances through the filing of a proof of claim.”); In re Manus, 324 B.R. 85, 87 (Bankr.W.D.Ark.2005) (\"If a fee or expense claimed by a creditor is based on the creditor's right to collect the fees under the respective pre-petition mortgage or deed of trust, the right to payment would be part of a pre-petition claim, even though the fees and charges were not incurred until after the debtor filed his respective bankruptcy petition.”). . See Fed. Rule Bankr.Proc. 3007(b) which provides, “A party in interest shall not include a demand for relief of a kind specified in Rule 7001 in an objection to the allowance of a claim, but may include the objection in an adversary proceeding.” . For an in-depth analysis of cases on both sides of this argument, see Padilla v. GMAC Mortgage Corp. (In re Padilla), 389 B.R. 409 (Bankr.E.D.Pa.2008). Additionally, cases finding that creditors are not required to seek prior approval include: In re Booth, 399 B.R. 316 (Bankr.W.D.Ark.2009) (finding that \"in the absence of local rules or court-sanctioned Chapter 13 form plans that provide otherwise, there is no requirement that creditors seek approval of their attorney’s fees pursuant to Federal Rule of Bankruptcy Procedure 2016.”) (citing In re Collins, 2007 WL 2116416 at *16 (Bankr.E.D.Tenn. July 19, 2007); In re Aldrich, 2008 WL 4185989, at *3 (Bankr.N.D.Iowa Sept.4, 2008); In re Hudak, 2008 WL 4850196, at *7 (Bankr.D.Colo. Oct.24, 2008)); In re Alanis, 316 B.R." }, { "docid": "10285309", "title": "", "text": "404 B.R. 747, 749-51 (Bankr.S.D.N.Y.2009) (disallowing claims finding they were barred by a New York statute of limitations); In re Simpson, No. 08-137, 2008 WL 4216317, *2 (Bankr.N.D.Ala. Aug. 29, 2008) (noting that court had previously disallowed claim after finding that it was barred by the statute of limitations); In re McGregor, 398 B.R. 561, 563-64 (Bankr.N.D.Miss.2008) (disallowing claim finding that it was barred by the statute of limitations); In re Brill, 318 B.R. 49, 53-54 (Bankr.S.D.N.Y.2004) (disallowing claim barred by the New York statute of limitations); cf. In re Alexander, 2014 WL 5449653, *1 (Bankr.E.D.Tenn. Oct. 22, 2014) (awarding attorney's fees for time spent objecting to stale claims). . In equipoise with such creditor conduct is the unscrupulous debtor who frivolously objects to every claim. This Court has a negative notice rule, LBR 3007-1, that provides for objections to claims to be sustained automatically after 30 days if they are not responded to. Several of the Plaintiffs' objections to the Defendants' claims were (properly) sustained in this way. Supra note 5. In many respects, a debtor who attempts to abuse this rule mirrors the Defendants’ conduct, and may not do so with impunity. See FED. R. BANKR. P. 9011(b); Smyth v. City of Oakland (In re Brooks-Hamilton), 271 Fed.Appx. 654 (9th Cir.2008) (noting that bankruptcy court has power to impose Rule 9011 sanction for frivolous objection to proof of claim); In re Davis, 2011 WL 10483434 (Bankr.E.D.Tex. Sept. 30, 2011) (imposing Rule 9011 sanctions for frivolous objections to valid credit card proofs of claim), aff'd sub nom. In re Armstrong, 487 B.R. 764 (E.D.Tex.2012). . Smith v. Asset Acceptance, LLC, 510 B.R. 225 (S.D.Ind.2013); Kline v. Mortg. Elecs. Security Systems, 659 F.Supp.2d 940 (S.D.Ohio 2009); Chaussee v. B-Real, LLC (In re Chaussee), 398 B.R. 916 (Bankr.W.D.Wash.2008), rev’d sub nom. B-Real, LLC v. Chaussee, 399 B.R. 225 (9th Cir. BAP 2008); Rogers v. B-Real, LLC (In re Rogers), 391 B.R. 317 (Bankr.M.D.La.2008), rev’d sub nom. B-Real, LLC v. Rogers, 405 B.R. 428 (M.D.La.2008); see also Price v. America's Servicing Co. (In re Price), 403 B.R. 775, 790 n. 14 (Bankr.E.D.Ark.2009)" }, { "docid": "12924442", "title": "", "text": "after the debtor filed his respective bankruptcy petition.”). . See Fed. Rule Bankr.Proc. 3007(b) which provides, “A party in interest shall not include a demand for relief of a kind specified in Rule 7001 in an objection to the allowance of a claim, but may include the objection in an adversary proceeding.” . For an in-depth analysis of cases on both sides of this argument, see Padilla v. GMAC Mortgage Corp. (In re Padilla), 389 B.R. 409 (Bankr.E.D.Pa.2008). Additionally, cases finding that creditors are not required to seek prior approval include: In re Booth, 399 B.R. 316 (Bankr.W.D.Ark.2009) (finding that \"in the absence of local rules or court-sanctioned Chapter 13 form plans that provide otherwise, there is no requirement that creditors seek approval of their attorney’s fees pursuant to Federal Rule of Bankruptcy Procedure 2016.”) (citing In re Collins, 2007 WL 2116416 at *16 (Bankr.E.D.Tenn. July 19, 2007); In re Aldrich, 2008 WL 4185989, at *3 (Bankr.N.D.Iowa Sept.4, 2008); In re Hudak, 2008 WL 4850196, at *7 (Bankr.D.Colo. Oct.24, 2008)); In re Alanis, 316 B.R. 323, 325 (Bankr.W.D.Ark.2004) (holding that there is no requirement in the bankruptcy code or rules that a creditor must obtain prior approval of its post-petition fees before including those fees in its proof of claim, but acknowledging that the fees are subject to review for reasonableness under § 506(b)); In re Manus, 324 B.R. 85, (Bankr.W.D.Ark.2005) (same). For cases finding that prior approval of such fees is required pursuant to Rule 2016, see Sanchez, 372 B.R. at 304 (Court acknowledged that the anti-modification clause of § 1322(b)(2) applied in that case because the mortgage creditor’s claim was secured only by the debtors' principal residence, but rejected the argument that § 1322(b)(2) rendered § 506(b) and Rule 2016 ineffectual.); and Payne v. Mortgage Electronic Registration Systems, Inc. (In re Payne), 387 B.R. 614, 631 (Bankr.D.Kan.2008) (\"Rule 2016 does not conflict with § 1322(b)(2) because Rule 2016 does not deny lenders the ability to assess and collect post-petition contractual fees. Rather, Rule 2016 requires the lender to disclose the charges and receive court approval.”). See also Wells" }, { "docid": "10557566", "title": "", "text": "mailed or otherwise delivered to the claimant ... at least 30 days prior to the hearing. Fed.R.Bankr.P. 3007(a). It appears undisputed that the Debtors complied with this requirement by mailing the Objection to the IRS. The Court is aware that some cases have found that because an objection to claim is a type of contested matter it therefore must be served the same as a summons and complaint. These cases rely on Fed.R.Bankr.P. 9011, entitled “Contested Matters”, which provides in relevant part: The motion shall be served in the manner provided for service of a summons and complaint by Rule 7004. Fed.R.Bankr.P. 9011(b). See, e.g., United States v. Hernandez, 173 B.R. 430 (N.D.Ala.1994). Although this position has some superficial appeal, for a number of reasons the Court concludes that the better view is that Fed.R.Bankr.P.3007(a) provides the method for proper “service” of the Objection. First, since Rule 3007 is the specific rule concerning objections to claims it controls service of such objections rather than the more general Rule 9011(b). See, 9 Collier on Bankruptcy ¶ 3007.01[4]. Second, Rule 9011(b) speaks to “motions” and is preceded by Rule 9011(a), which states in pertinent part: In a contested matter in a case under the Code not otherwise governed by these rules, relief shall be requested by motion, and reasonable notice and opportunity for hearing shall be afforded the party against whom relief is sought, (emphasis added). The emphasized language indicates that where the Federal Rules of Bankruptcy Procedure provide an alternative procedure for a specific type of contested matter, as they do with respect to service of objections to claims under Rule 3007, that alternative procedure applies. Put another way, the Objection is not a “motion” for purposes of Rule 9011(b) and Debtors did not need to comply with the service requirements of that Rule. See, e.g., In re Hawthorne, 326 B.R. 1 (Bankr.D.D.C.2005) (reviewing all of the Federal Rules of Bankruptcy Procedure and finding seven instances of contested matters commenced by objections rather than motions, in two of which, objections to claims and objections to exemptions (Rule 1003(b) ), the applicable" } ]

[ { "docid": "22138899", "title": "", "text": "amount later determined by the court to be the settlors’ equitable share. For a more complex example illustrating the potential for unfairness under the pro tanto rule when the parties are not equally at fault, see Kornhauser & Revesz, 68 N. Y. U. L. Rev., at 465-456 (pro tanto rule can lead to defendant responsible for 75% of damages paying only 37.5% of loss, while 26% responsible defendant pays 31.25%). In re Masters Mates & Pilots Pension Plan and IRAP Litigation, 957 F. 2d 1020 (CA2 1992); Miller v. Christopher, 887 F. 2d 902, 906-907 (CA9 1989); Tech-Bilt, Inc. v. Woodward-Clyde & Assocs., 38 Cal. 3d 488, 698 P. 2d 159 (1985); Uniform Contribution Among Tortfeasors Act §4 (1955 Revised Act), 12 U. L. A. 98 (1975) (enacted as statute law in 19 States, 12 U. L. A. 81 (1993 Supp.)). Tech-Bilt, Inc., 38 Cal. 3d, at 499, 698 P. 2d, at 166; Miller, 887 F. 2d, at 907; In re Masters, 957 F. 2d, at 1031; but see Noyes v. Raymond, 28 Mass. App. 186, 190, 548 N. E. 2d 196, 199 (1990) (judge in good-faith hearing should not scrutinize the settlement amount, but merely look for “collusion, fraud, dishonesty, and other wrongful conduct”). Franklin v. Kaypro Corp., 884 F. 2d 1222, 1230 (CA9 1989). Tech-Bilt, 38 Cal. 3d, at 500, 698 P. 2d, at 167 (“[T]he determination of good faith can be made by the court on the basis of affidavits”); TBG Inc. v. Bendis, 811 F. Supp. 596, 605, n. 17, 608 (Kan. 1992) (no “mini trial” required; settlement amount is “best available measure of liability”). Suppose again, as in footnote 14, that plaintiff sues two equally culpable defendants for $1 million and settles with one for $250,000. At the good-fáith hearing, the settling defendant persuasively demonstrates that the settlement is in good faith, because it shows that its share of liability is 50% and that plaintiff has only a 50% chance of prevailing at trial. The settlement thus reflects exactly the settling defendant’s expected liability. If plaintiff prevails at trial, the nonsettling defendant will again be" } ]

[ { "docid": "16128071", "title": "", "text": "shall have the burden of proof on that issue. The California Supreme Court has set forth the following criteria for determining whether a particular settlement is made in good faith: [T]he intent and policies underlying section 877.6 require that a number of factors be taken into account including a rough approximation of plaintiffs total recovery and the settlor’s proportionate liability, the amount paid in settlement, the allocation of settlement proceeds among plaintiffs, and a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial. Other relevant considerations include the financial conditions and insurance policy limits of settling defendants, as well as the existence of collusion, fraud, or tortious conduct aimed to injure the interest of non-settling defendants. Finally, practical considerations obviously require that the evaluation be made on the basis of information available at the time of settlement. Tech-Bilt, Inc. v. Woodward-Clyde & Associates, 38 Cal.3d 488, 499, 213 Cal.Rptr. 256, 698 P.2d 159 (1985) (citations omitted). As provided in subdivision (d) of § 877.6, any party challenging the good faith of the proposed settlement bears the burden of proving that the settlement was entered into in bad faith. To do so, the challenging party must \"demonstrate, if he can, that the settlement is so far ‘out of the ballpark’, in relation to these factors as to be inconsistent with the equitable objectives of the statute.\" Id. at 499-500, 213 Cal.Rptr. 256, 698 P.2d 159. . In Northwest Airlines v. Transport Workers Union, 451 U.S. 77, 87 n. 17, 101 S.Ct. 1571, 1578 n. 17, 67 L.Ed.2d 750 (1981), the Court observed that thirty-nine states and the District of Columbia now recognize to some extent a right of contribution among tortfeasors. See abo Globus, Inc. v. Law Research Service, Inc. (Globus II), 318 F.Supp. 955, 957 (S.D.N.Y.1970), aff’d per curiam, 442 F.2d 1346 (2d Cir.), cert. denied, 404 U.S. 941, 92 S.Ct. 286, 30 L.Ed.2d 254 (1971) (\"the general drift of the law today is toward the allowance of contribution among tortfeasors\"). . While the Ninth Circuit has yet to" }, { "docid": "5226000", "title": "", "text": "Singer Co. v. Superior Court, 179 Cal.App.3d 875, 890, 225 Cal. Rptr. 159 (1986) (notice and hearing required before denial of property interest). We agree that whether a settlement is in good faith under Cal.Civ.P.Code § 877 is a finding of fact for the trial court. We reverse and reinstate Broco. The district court should rule on Broco’s motion for reconsideration and consider all Broco’s arguments. The district court is advised to apply all the factors enunciated in Tech-Bilt, Inc. v. Woodward-Clyde & Associates, 38 Cal.3d 488, 213 Cal.Rptr. 256, 698 P.2d 159 (1985). It appears that the district court overlooked several of these factors when determining the settlement was not in good faith. The factors are: 1. A rough approximation of plaintiffs’ total recovery and the settlors’ proportionate liability; 2. The amount paid in settlement; 3. The allocation of settlement proceeds among plaintiffs; 4. A recognition that a settlor should pay less in settlement than he would if he were found liable after trial; 5. The financial conditions and insurance policy limits of settling defendants; and, 6. The existence of collusion, fraud, or tortious conduct aimed to injure the interest of non-settling defendants. Tech-Bilt, 213 Cal.Rptr. at 262-63, 698 P.2d at 166-67. III. CONCLUSION We REVERSE the order granting summary judgment to the government. We also REVERSE the order dismissing the third party claim against Broco. On remand the district court is directed to rule on Broco’s motion for reconsideration regarding good faith settlement between Ya-nez and Broco and consider all the factors enunciated in Tech-Bilt. . Section 877.6 states in pertinent part: (a)Any party to an action wherein it is alleged that two or more parties are joint tort-feasors or co-obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co-obligors, upon giving notice thereof in the manner provided in subdivision (b) of Section 1005.... (b) The issue of the good faith of a settlement may be determined by the court on" }, { "docid": "7167322", "title": "", "text": "Diego v. A.A. Baxter Corp., 176 Cal.App.3d 577, 585, 222 Cal.Rptr. 106 (1986). The California Courts of Appeal are apparently divided on the resolution of this issue. Compare Angelus Associates Corp. v. Neonex Leisure Products, Inc., 167 Cal.App.3d 532, 213 Cal.Rptr. 403 (1985) with IRM Corp. v. Carlson, 179 Cal.App.3d 94, 224 Cal.Rptr. 438 (1986). This court adopts what it perceives to be the majority, and better reasoned, view, that sections 877 and 877.6 may bar, generally, claims for total equitable indemnity and, particularly, claims for total equitable indemnity based on a joint tortfeasor’s solely vicarious liability. Standard Pacific, 176 Cal.App.3d at 585-589, 222 Cal.Rptr. 106; see Lopez v. Blecher, 143 Cal.App.3d 736, 738-740, 192 Cal.Rptr. 190 (1983), IRM Corp., 179 Cal.App.3d at 104-107, 224 Cal.Rptr. 438. III. CONCLUSION Laventhol allows a non-settling defendant’s right to contribution under the federal securities laws to be extinguished by a partial settlement so long as the settlement represents the settling defendants’ “fair” or “proper” share of the damages sought by plaintiffs. The factors relevant to a finding of a “fair” or “proper” share include (1) the participation of an independent magistrate or judge in the settlement negotiations, (2) the adequacy of the settlement amount in light of the possible uncollectability of any larger judgment which might be entered against the settling defendants after trial, (3) the adequacy of the settlement amount in light of uncertainties surrounding the settling defendant’s liability, and (4) whether the settlement amount bears a reasonable relation to the settling defendant’s proportional share of the total damages based upon his comparative culpability. Application of the foregoing factors to the immediate case demonstrates that the $41 million settlement fund tendered by settling defendants represents their “fair” and “proper” share of the total damages sought by plaintiffs. California law governs all claims for contribution or indemnification which may arise in the immediate case as a result of plaintiffs’ pendent state law causes of action. Analysis of the factors set forth in Tech-Bilt compels a finding that the $41 million tendered by the settling defendants is a good faith settlement. IV. ORDER The" }, { "docid": "5225987", "title": "", "text": "SAMUEL P. KING, Senior District Judge: I. OVERVIEW On June 11, 1986, an explosion occurred at Caelus Devices, Inc. (“CDI”), a munitions contractor for the United States. Appellant Isabel Yanez, a CDI employee, suffered third degree burns and lost her left lower arm. On February 6, 1987, Yanez filed suit in California Superior Court against Broco, Inc., J.S. Brower & Associates, and J.S. Brower (collectively “Broco”) alleging that Broco supplied defective lead azide (the initiating explosive) to CDI, proximately causing her injuries. Broco was also sued by CDI. The cases were consolidated. The Yanez/Broco suit settled in April 1989 for $375,000. The CDI/Broco suit settled in May 1989 for $90,000. Pursuant to California Code of Civil Procedure § 877.6, retired state court Judge J. Barton Phelps, judge pro tempore, issued orders determining good faith settlements and barring further claims. Meanwhile, on June 7, 1988, Yanez initiated a federal suit against the United States pursuant to the Federal Tort Claims Act. Yanez alleged that the United States was negligent in inspecting and enforcing contractual safety regulations, proximately causing her injuries. On June 20, 1989, the United States filed a third-party complaint against Broco seeking indemnity or contribution. Broco moved to dismiss under principles of good faith settlement, relying on the April 1989 settlement agreement between it and Ya-nez. The district court denied Broco’s motion on Sept. 28, 1989. The district court, Judge Spencer Williams, found that the settlement was not made in good faith because the United States was not a party and the settlement payment was not proportionate to the parties’ relative liability. In doing so, the court did not enunciate all the factors from Tech-Bilt Inc. v. Woodward-Clyde & Assoc., 38 Cal.3d 488, 213 Cal.Rptr. 256, 698 P.2d 159 (1985). Broco moved for reconsideration. The court did not rule on this motion. The United States then moved pursuant to Fed.R.Civ.P. 12(c) for judgment on the pleadings against Yanez. The district court, treating the motion as one for summary judgment, denied it on Dec. 8, 1989. It found Yanez had presented sufficient evidence that a reasonable trier of fact could" }, { "docid": "23326662", "title": "", "text": "more than if all parties proceeded to trial. Some argue that a good faith hearing prevents these evils. We disagree. In the first place, a good faith hearing \"means bogging down the settlement process in a miniature trial before trial.” Donovan v. Robbins, 752 F.2d 1170, 1181 (7th Cir.1985). In order to be truly efficacious, the good faith hearing would require a full eviden-tiary hearing on all of the parties’ relative culpabilities. This would negate many of the benefits of settlement. Furthermore, the very dynamics of settlement guarantee that, even with a good faith hearing, the offset scheme forces non-settling defendants to pay more than the amount for which they are culpable. Settlement is attractive to parties because it reduces litigation costs. Therefore, plaintiffs are willing to settle for less than they might receive if a claim were fully litigated. See Elliot, Managerial Judging and the Evolution of Procedure, 53 U.Chi.L. Rev. 306, 332-33 (1986). Courts are instructed to allow this discounting when determining whether a partial settlement was entered in good faith. See Tech-Bilt, Inc. v. Woodward-Clyde & Assocs., 38 Cal.3d 488, 499, 698 P.2d 159, 166, 213 Cal.Rptr. 256, 263 (1985) (explaining Cal.Code Civ.P. § 877.6); Manual for Complex Litigation 2d § 30.44 (1986) (discussing Fed.R.Civ.P. 23). Plaintiffs are willing to forego this money, and courts correctly approve the discount. Nonetheless, under the offset scheme, nonsettling defendants are forced to pay to plaintiffs the amount of the discount. In Smith v. Mulvaney, we were asked to determine whether the right to contribution should be apportioned on the basis of relative culpability or on a pro rata basis. 827 F.2d at 559. We found that “[contribution is an equitable doctrine. To apportion damages without regard to fault reduces, to an extent, the equity which the doctrine was intended to provide.” Id. at 561. Although we do not lose sight of the fact that we are speaking of equities between wrongdoers, we decline to back away from our goal of equity. We need not do so. The final alternative, expounded by the Eastern District of Pennsylvania in In re Sunrise" }, { "docid": "19686930", "title": "", "text": "Jur.2d Contribution § 4, at 10-14 (1965). There is no right to a jury trial when the relief sought is that of equity. Ross v. Bernhard, 396 U.S. 531, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970). N.R.S. 17.245 was enacted to encourage settlements by discharging all liability for contribution by a settling tortfeasor to others upon a finding that the settlement was entered in “good faith.” A non-settling tortfeasor is protected, however, under N.R.S. 17.245 because the non-settling defendant receives a credit in the amount contributed by the settling defendant in any subsequent verdict against that defendant. N.R.S. 17.245(1). In order to further protect the non-settling defendant, the Court must find that the settlement was in “good faith.” Non-settling defendants have failed to cite any direct authority to support this proposition that they are entitled to a jury trial on the issue of “good faith.” Statements found in Lareau v. Southern Pacific Transportation Co., 44 Cal.App.3d 783, 798 n. 14, 118 Cal.Rptr. 837, 846 n. 14 (1975) to the effect that there is a right to jury trial are mere dictum and were not issues decided by the Court. To the contrary, Cal.Civ. Proc.Code § 877.6, effective 1980, provides that a hearing on the issue of the good faith of a settlement shall be held before trial and that “[t]he issue of the good faith of a settlement may be determined by the court on the basis of affidavits served with the notice of hearing, and any counter-affidavits filed in response thereto, or the court may, in its discretion, receive other evidence at the hearing.” (Emphasis added). That statute makes no reference to a right to jury trial on the issue of good faith. Non-settling defendants cite Palmer v. United States, 652 F.2d 893 (9th Cir.1981) and In re N-500L Cases, 691 F.2d 15 (1st Cir.1982) for the proposition that they are entitled to a jury trial on this issue. However, those cases held that there is a right to jury trial on the issue of liability and the recovery of damages through indemnity or contribution. Palmer and In re" }, { "docid": "7167308", "title": "", "text": "them on the basis of their comparative fault. B. State Claims for Contribution and Indemnification The non-settling defendants also contend that, should they be found liable as joint tortfeasors with the settling defendants under the pendent state law claims, they will have state causes of action for contribution and indemnification. In this regard, California law, unlike federal law, expressly creates a procedure whereby a non-settling defendant’s right to contribution or indemnification under state law may be extinguished prior to trial. Section 877 of the California Code of Civil Procedure provides that [wjhere a release, dismissal with or without prejudice, or a covenant not to sue or not to enforce judgment is given in good faith before verdict or judgment to one or more of a number of tortfeasors claimed to be liable for the same tort— [11] (a) it shall not discharge any other such tortfeasor from liability unless its terms so provide, but it shall reduce the claims against the others in the amount stipulated by the release, dismissal or the covenant, or in the amount of the consideration paid for it whichever is the greater; and [¶] (b) it shall discharge the tortfeasor to whom it is given from all liability for any contribution to any other tortfeasor. In American Motorcycle Association v. Superior Court, 20 Cal.3d 578, 146 Cal.Rptr. 182, 578 P.2d 899 (1978), the California Supreme Court construed section 877(b) to permit a good faith settlement to bar not only a non-settling defendant’s right to contribution, but also his right to partial or comparative indemnity. Id. at 604, 146 Cal.Rptr. 182, 578 P.2d 899. The California legislature subsequently codified this holding in section 877.6 of the California Code of Civil Procedure, which provides, in pertinent part, that [a] determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor from further claims against the settling tortfeasor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault. Thus, sections 877 and 877.6 together permit a settling tortfeasor, upon a finding that a partial settlement" }, { "docid": "7167309", "title": "", "text": "the amount of the consideration paid for it whichever is the greater; and [¶] (b) it shall discharge the tortfeasor to whom it is given from all liability for any contribution to any other tortfeasor. In American Motorcycle Association v. Superior Court, 20 Cal.3d 578, 146 Cal.Rptr. 182, 578 P.2d 899 (1978), the California Supreme Court construed section 877(b) to permit a good faith settlement to bar not only a non-settling defendant’s right to contribution, but also his right to partial or comparative indemnity. Id. at 604, 146 Cal.Rptr. 182, 578 P.2d 899. The California legislature subsequently codified this holding in section 877.6 of the California Code of Civil Procedure, which provides, in pertinent part, that [a] determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor from further claims against the settling tortfeasor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault. Thus, sections 877 and 877.6 together permit a settling tortfeasor, upon a finding that a partial settlement is in good faith, to “buy his peace” and extricate himself from pending litigation without fear of future contribution or indemnification claims by non-settling joint tortfeasors. The California Supreme Court recently defined good faith as that term is used in sections 877 and 877.6. In Tech-Bilt, Inc. v. Woodward-Clyde & Associates, 38 Cal.3d 488, 213 Cal.Rptr. 256, 698 P.2d 159 (1985), the court noted that a finding of good faith requires the trial court to inquire “whether the amount of the settlement is within the reasonable range of the settling tortfeasor’s proportional share of the comparative liability for the plaintiff’s injuries.” Id. at 499, 213 Cal.Rptr. 256, 698 P.2d 159. The court cautioned, however, against overemphasis on this factor, stating that a requirement that the settlement precisely equal the settling defendant’s theoretical proportionate share would unduly discourage settlement. Id. The court concluded that a trial court evaluating the good faith of a settlement should consider a number of factors, including a rough approximation of plaintiff’s total recovery and the settlor’s proportionate liability, the amount paid" }, { "docid": "16128066", "title": "", "text": "that the need for a nationally uniform body of law far outweighs the advantages of utilizing the state statute. Thus, a uniform federal settlement bar rule, rather than the California settlement bar statute, will govern these federal securities claims. IV The next, and final, step in the court’s analysis is to define the contours of the uniform federal settlement bar rule and to apply said rule to the Niesar settlement. In defining the contours of the uniform federal settlement bar rule, the court holds that a partial settlement will bar implied rights of contribution only when said settlement is, viewed in the totality of the circumstances, fundamentally fair and equitable. See In re Nucorp Energy Securities Litigation, 661 F.Supp. 1403, [1987 Transfer Binder] Fed.Sec.L.Rep. (CCH) 1193,224 at 96,060 (S.D.Cal.1987) (partial settlement which represents a “fair or proper share of damages” will bar cross-claims for contribution). Among the factors to be considered in making such a determination are the possible uncollectibility of any larger judgment which might be entered against the settling defendants, the adequacy of the settlement amount in light of the comparative culpability of the settling defendants and the uncertainties of establishing such liability, and the participation of a magistrate or judge in the settlement negotiations. Id. Court review of a partial settlement in light of such factors will yield ample protection of the non-settling defendants’ interests, and yet allow the settling defendants to confidently buy their peace. Notably, these are the same types of factors which are considered under the California’s settlement bar statute. See Tech-Bilt, Inc. v. Woodward-Clyde & Associates, 38 Cal.3d 488, 213 Cal.Rptr. 256, 698 P.2d 159 (1985). Applying such factors to the Niesar settlement inescapably leads to the conclusion that this is a fundamentally fair and equitable settlement. First and foremost, the settlement is adequate in light of the possible uncollectibility of any larger judgment. At its most practical level, the Nie-sar settlement reflects a recognition that the only substantial recoverable asset of the Niesar defendants is their legal malpractice insurance. The Niesar defendants have submitted detailed evidence, including the opinion of legal counsel" }, { "docid": "19828367", "title": "", "text": "in good faith. The court held that where “parties to a lawsuit settle ‘in good faith before verdict or judgment’ the settling tortfeasor is released from all liability for any contribution to any other tortfeasors and the claims against the nonsettling tortfeasors will be reduced by the amount of the contribution paid for the release of the settling tortfeasor.” Id. at 747, 60 Cal.Rptr.2d 703. The court stated that § 877 favors settlement and that to preserve the incentive to settle, “ ‘a plaintiffs recovery from nonsettling tortfeasors should be diminished only by the amount that the plaintiff has actually recovered in a good faith settlement, rather than by an amount measured by the settling tortfeasor’s proportionate responsibility for the injury.’ ” Id. at 751, 60 Cal.Rptr.2d 703 (quoting Am. Motorcycle Ass’n v. Superior Court, 20 Cal.3d 578, 604, 146 Cal.Rptr. 182, 578 P.2d 899 (Cal.1978)). The court held that the plaintiff was entitled to an offset of the entire amount of the settlement and not just an amount attributable to his liability. Id. at 752, 60 Cal.Rptr.2d 703. In this case, the settlings defendants agreed to settle with the trustee for the amount of $4.5 million. In the settlement agreement, the attorney defendants agreed to pay $3,075,000 and the directors agreed to pay $825,000 and $600,000. The agreement also provided that the trustee allocate the $3,075,000 to malpractice claims, and the directors’ payments to forgiveness of promissory notes and repurchase of shares. In approving the settlement, the bankruptcy court reserved the right to find Tramiel a joint tortfeasor, which it did orally, and it found no stipulated good faith allocation given that the agreement merely recites that the trustee assigned the settlement to the non-joint claims. Although the settlement agreement does not allocate an amount of liability for Tramiel’s harm, based on Alcal, Tramiel is entitled to an offset under § 877 of the entire settlement amount paid to the trustee. Thus, Tramiel is entitled to a settlement credit of $4.5 million. 8 Cal. App.4th at 1127-28, 10 Cal.Rptr.2d 844. E. Director Preferences Decker argues that the repayment of" }, { "docid": "7167317", "title": "", "text": "based upon his comparative liability, see Tech-Bilt, 38 Cal.3d at 499, 213 Cal.Rptr. 256, 698 P.2d 159, and by reducing the claims remaining against a non-settling defendant by the amount of the settlement. See CaLCode Civ.Pro. 877(a). New York, like California, has enacted a good faith statute in order to further the dual interest of encouraging settlement and protecting non-settling defendants from paying more than their equitable share of the damages. First Federal, 631 F.Supp. at 1032; see N.Y.Gen.Oblig.L. § 15-108. Unlike California, however, New York adheres to a more traditional definition of good faith as the absence of collusion or other indicia of bad faith. See Torres v. State, 413 N.Y.S.2d 262, 263, 67 A.D.2d 814 (1979); Kelly v. New York Telephone, 473 N.Y.S.2d 480, 481, 100 A.D.2d 537 (1984). Thus, in order to ensure that a non-settling defendant pays no more than his equitable share of the damages, New York permits reduction of any judgment entered against a non-settling defendant by the amount of the settlement or by the amount of the settling defendant’s equitable share of the damages, whichever is greater. See N.Y.Gen.Oblig.L. § 15-108(a). Texas, unlike California and New York, has not enacted a good faith statute expressly barring contribution or indemnification claims by non-settling defendants. See Palestine Contractors, Inc. v. Perkins, 386 S.W.2d 764, 767 & 771 (Tex.1964). However, in order to encourage settlement while simultaneously protecting a non-settling defendant from paying more than his equitable share of the damages, Texas eliminates a non-settling defendant’s motivation for filing an action for contribution by permitting any judgment ultimately entered against him to be reduced by the percentage of causation allocated to the settling tortfeasor. Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 430 (Tex.1984). These three jurisdictions, then, further the identical dual interest through three slightly different means. The difference in means causes a difference in practical effect. In California, the risk of a settlement which, in hindsight, does not precisely equal the actual share of the damages attributable to the settling defendant is placed on the non-settling defendant. In both New York and Texas, that" }, { "docid": "7167316", "title": "", "text": "law of the state whose interest would be the more impaired if its law were not applied. Offshore Rental, 22 Cal.3d at 164-165, 148 Cal.Rptr. 867, 583 P.2d 721. Notwithstanding the contentions of DU, the record in this case is sufficiently developed to permit an immediate decision on the choice of law problem. Application of the first part of the governmental interest analysis suggests that a true conflict of laws problem exists. In order to encourage settlement while simultaneously ensuring that a non-settling defendant pays no more than his equitable share of the total damages, California adopted the good faith provisions of sections 877 and 877.6. See Tech-Bilt, 38 Cal.3d at 494, 213 Cal.Rptr. 256, 698 P.2d 159. These sections encourage settlement by allowing a good faith settlement to bar subsequent claims for contribution and indemnification against the settling defendant by non-settling defendants. See CaLCode Civ.Pro. 877(b) and 877.6(c). These sections also protect the non-settling defendant by requiring that a good faith settlement bear a reasonable relation to the settlor’s proportional share of the damages based upon his comparative liability, see Tech-Bilt, 38 Cal.3d at 499, 213 Cal.Rptr. 256, 698 P.2d 159, and by reducing the claims remaining against a non-settling defendant by the amount of the settlement. See CaLCode Civ.Pro. 877(a). New York, like California, has enacted a good faith statute in order to further the dual interest of encouraging settlement and protecting non-settling defendants from paying more than their equitable share of the damages. First Federal, 631 F.Supp. at 1032; see N.Y.Gen.Oblig.L. § 15-108. Unlike California, however, New York adheres to a more traditional definition of good faith as the absence of collusion or other indicia of bad faith. See Torres v. State, 413 N.Y.S.2d 262, 263, 67 A.D.2d 814 (1979); Kelly v. New York Telephone, 473 N.Y.S.2d 480, 481, 100 A.D.2d 537 (1984). Thus, in order to ensure that a non-settling defendant pays no more than his equitable share of the damages, New York permits reduction of any judgment entered against a non-settling defendant by the amount of the settlement or by the amount of the settling" }, { "docid": "7167310", "title": "", "text": "is in good faith, to “buy his peace” and extricate himself from pending litigation without fear of future contribution or indemnification claims by non-settling joint tortfeasors. The California Supreme Court recently defined good faith as that term is used in sections 877 and 877.6. In Tech-Bilt, Inc. v. Woodward-Clyde & Associates, 38 Cal.3d 488, 213 Cal.Rptr. 256, 698 P.2d 159 (1985), the court noted that a finding of good faith requires the trial court to inquire “whether the amount of the settlement is within the reasonable range of the settling tortfeasor’s proportional share of the comparative liability for the plaintiff’s injuries.” Id. at 499, 213 Cal.Rptr. 256, 698 P.2d 159. The court cautioned, however, against overemphasis on this factor, stating that a requirement that the settlement precisely equal the settling defendant’s theoretical proportionate share would unduly discourage settlement. Id. The court concluded that a trial court evaluating the good faith of a settlement should consider a number of factors, including a rough approximation of plaintiff’s total recovery and the settlor’s proportionate liability, the amount paid in settlement, the allocation of the settlement proceeds among the plaintiffs, and a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial. Other relevant considerations include the financial conditions and insurance policy limits of settling defendants, as well as the existence of collusion, fraud, or tortious conduct aimed to injure the interests of non-settling defendants. Id. The court also noted that under the procedure prescribed by section 877.6, the good faith of a settlement would ordinarily be determined prior to the non-settling defendant’s trial. Id. at 500 n. 8, 213 Cal.Rptr. 256, 698 P.2d 159. The factors relevant to a finding of good faith under California law, then, are similar to the factors which are relevant to a finding that the settlement represents the settlor’s “fair” or “proper” share of the damages under Laventhol. Thus, if sections 877 and 877.6 apply to the state law claims alleged in the immediate case, the reasoning underlying the prior finding that the settlement represents the settling defendant’s" }, { "docid": "16128039", "title": "", "text": "several states have enacted statutes which are generically known as “settlement bar statutes.” Under the provisions of such statutes, a partial settlement will, in specified instances, operate so as to bar the non-settling defendants from asserting cross-claims for contribution against the settling defendant. A defendant contemplating settlement with plaintiff is thereby granted assurance that, so long as the requirements of the settlement bar statute are satisfied, it may fully “buy its peace” through such a settlement. The California statute, Cal.Civ.Proc. Code § 877.6, is representative of a state settlement bar statute. Its primary objective, like that of similar state statutes, is to encourage settlements. See Tech-Bilt, Inc. v. Woodward-Clyde & Associates, 38 Cal.3d 488, 494, 213 Cal.Rptr. 256, 698 P.2d 159 (1985). In addition, however, the settlement bar statute is intended to complement the equitable goals underlying rights of contribution. Id. For this reason, not just any settlement will bar rights of contribution, but only those determined by the court to be in “good faith”. Furthermore, the non-settling defendants are entitled to set off the amount of the settlement from any judgment ultimately entered against them. Federal statutory law, by contrast, does not provide a settlement bar rule of general application, nor do the implicated federal securities statutes so provide. The task now before this court, most simply put, is to determine whether the implied rights of contribution in these federal securities actions should, in order to encourage settlement, be subject to an implied settlement bar rule under federal common law. II The caselaw is currently unsettled, to say the least, on the issue of whether a partial settlement may bar implied rights of contribution under the federal securities laws. Indeed, only a handful of district courts have directly considered the issue. Before turning to these cases, however, the court directs its attention to a Ninth Circuit decision which all defendants claim indirectly sheds light on the inquiry—Laventhol, Krekstein, Horwath & Horwath v. Horwitch, 637 F.2d 672 (9th Cir.1980), cert. denied, 452 U.S. 963, 101 S.Ct. 3114, 69 L.Ed.2d 975 (1981). Interestingly, the Nie-sar defendants and the non-settling defendants both" }, { "docid": "5225999", "title": "", "text": "28, 1989 Order. If the Yanez-United States case is reinstated, the district court will again have jurisdiction to determine whether the Yanez-Broco suit was settled in good faith, i.e. to rule on Broco’s outstanding motion for reconsideration. The government also argues that Broco’s motions to dismiss the third-party complaint were actually motions for summary judgment since Broco went beyond the pleadings and asked the court to consider exhibits (twenty exhibits in the first motion, twenty-five in the motion for reconsideration). As summary judgment motions, the United States argues that material is sues of fact remain as to whether the settlement was in good faith. Indeed, Broco spends much of its brief arguing facts that it asserts the district court did not consider in its initial ruling on Sept. 28,1989. Broco also contends that “new facts” have arisen since the Sept. 28th motion which also support a good faith settlement. The government responds that, even if this court were to invoke its discretionary powers, the government must be allowed a hearing on the question. It cites Singer Co. v. Superior Court, 179 Cal.App.3d 875, 890, 225 Cal. Rptr. 159 (1986) (notice and hearing required before denial of property interest). We agree that whether a settlement is in good faith under Cal.Civ.P.Code § 877 is a finding of fact for the trial court. We reverse and reinstate Broco. The district court should rule on Broco’s motion for reconsideration and consider all Broco’s arguments. The district court is advised to apply all the factors enunciated in Tech-Bilt, Inc. v. Woodward-Clyde & Associates, 38 Cal.3d 488, 213 Cal.Rptr. 256, 698 P.2d 159 (1985). It appears that the district court overlooked several of these factors when determining the settlement was not in good faith. The factors are: 1. A rough approximation of plaintiffs’ total recovery and the settlors’ proportionate liability; 2. The amount paid in settlement; 3. The allocation of settlement proceeds among plaintiffs; 4. A recognition that a settlor should pay less in settlement than he would if he were found liable after trial; 5. The financial conditions and insurance policy limits of settling" }, { "docid": "7167315", "title": "", "text": "106, 522 P.2d 666 (1974); Offshore Rental Co. v. Continental Oil Co., 22 Cal.3d 157, 161, 148 Cal.Rptr. 867, 583 P.2d 721 (1978). This analysis involves, essentially, a three-part test. First, the court must determine whether there is in fact a conflict between the competing jurisdictions since “there is obviously no problem where the laws of the two states are identical.” Hurtado, 11 Cal.3d at 580, 114 Cal.Rptr. 106, 522 P.2d 666; Offshore Rental, 22 Cal.3d at 161-162, 148 Cal.Rptr. 867, 583 P.2d 721. If a conflict exists between the laws of the two jurisdictions, the court must then determine whether each jurisdiction has a legitimate interest in the application of its law and underlying policy. Again, if only one jurisdiction has a legitimate interest, there is no actual conflict of laws problem. Hurtado, 11 Cal.3d at 580, 114 Cal.Rptr. 106, 522 P.2d 666; Offshore Rental, 22 Cal.3d at 163, 148 Cal.Rptr. 867, 583 P.2d 721. If both jurisdictions have a legitimate interest in the application of their conflicting laws, the court should apply the law of the state whose interest would be the more impaired if its law were not applied. Offshore Rental, 22 Cal.3d at 164-165, 148 Cal.Rptr. 867, 583 P.2d 721. Notwithstanding the contentions of DU, the record in this case is sufficiently developed to permit an immediate decision on the choice of law problem. Application of the first part of the governmental interest analysis suggests that a true conflict of laws problem exists. In order to encourage settlement while simultaneously ensuring that a non-settling defendant pays no more than his equitable share of the total damages, California adopted the good faith provisions of sections 877 and 877.6. See Tech-Bilt, 38 Cal.3d at 494, 213 Cal.Rptr. 256, 698 P.2d 159. These sections encourage settlement by allowing a good faith settlement to bar subsequent claims for contribution and indemnification against the settling defendant by non-settling defendants. See CaLCode Civ.Pro. 877(b) and 877.6(c). These sections also protect the non-settling defendant by requiring that a good faith settlement bear a reasonable relation to the settlor’s proportional share of the damages" }, { "docid": "16128038", "title": "", "text": "E.g., Huddleston v. Herman & MacLean, 640 F.2d 534 (5th Cir.1981); aff’d in part, rev’d in part on other grounds, 459 U.S. 375, 103 S.Ct. 683, 74 L.Ed.2d 548 (1983); Tucker v. Arthur Andersen & Co., 646 F.2d 721 (2d Cir.1981); Heizer Corp., 601 F.2d 330. A noted, and entirely unintended, consequence of contribution, however, is its tendency to inhibit settlement, particularly in complex, multiple defendant actions. See Huddleston, 640 F.2d at 558. In such actions, even if an individual defendant is willing to settle with plaintiffs, that defend ant would nevertheless remain subject to liability on the cross-claims for contribution asserted by the non-settling defendants. In other words, a settling defendant does not reduce its financial exposure by entering into a partial agreement with plaintiffs and, therefore, has little incentive to do so. While financial exposure can, of course, be terminated by a full settlement between plaintiffs and all defendants, as a practical matter a single, comprehensive settlement agreement is exceedingly difficult to orchestrate in complex actions. To counteract this inhibiting effect on settlement, several states have enacted statutes which are generically known as “settlement bar statutes.” Under the provisions of such statutes, a partial settlement will, in specified instances, operate so as to bar the non-settling defendants from asserting cross-claims for contribution against the settling defendant. A defendant contemplating settlement with plaintiff is thereby granted assurance that, so long as the requirements of the settlement bar statute are satisfied, it may fully “buy its peace” through such a settlement. The California statute, Cal.Civ.Proc. Code § 877.6, is representative of a state settlement bar statute. Its primary objective, like that of similar state statutes, is to encourage settlements. See Tech-Bilt, Inc. v. Woodward-Clyde & Associates, 38 Cal.3d 488, 494, 213 Cal.Rptr. 256, 698 P.2d 159 (1985). In addition, however, the settlement bar statute is intended to complement the equitable goals underlying rights of contribution. Id. For this reason, not just any settlement will bar rights of contribution, but only those determined by the court to be in “good faith”. Furthermore, the non-settling defendants are entitled to set off the" }, { "docid": "7167311", "title": "", "text": "in settlement, the allocation of the settlement proceeds among the plaintiffs, and a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial. Other relevant considerations include the financial conditions and insurance policy limits of settling defendants, as well as the existence of collusion, fraud, or tortious conduct aimed to injure the interests of non-settling defendants. Id. The court also noted that under the procedure prescribed by section 877.6, the good faith of a settlement would ordinarily be determined prior to the non-settling defendant’s trial. Id. at 500 n. 8, 213 Cal.Rptr. 256, 698 P.2d 159. The factors relevant to a finding of good faith under California law, then, are similar to the factors which are relevant to a finding that the settlement represents the settlor’s “fair” or “proper” share of the damages under Laventhol. Thus, if sections 877 and 877.6 apply to the state law claims alleged in the immediate case, the reasoning underlying the prior finding that the settlement represents the settling defendant’s “fair” or “proper” share of the damages would likewise require a finding that the settlement is in good faith. The non-settling defendants, however, advance various arguments against application of sections 877 and 877.6 to claims for contribution and indemnification arising as a result of the state law causes of action alleged in this case. All of the non-settling defendants contend that, whatever the applicability of sections 877 and 877.6 to claims for contribution and indemnification arising from plaintiffs’ pendent common law causes of action, these sections cannot apply to claims for contribution and indenmnification arising from plaintiffs’ statutory causes of action under the California Securities Act, Cal. Corp. Code §§ 25000 et seq. In support of this contention, the non-settling defendants rely on a single case, Harrison v. Sheats, 608 F.Supp. 502 (E.D.Cal.1985). In Ham-son, the court held that contribution and indemnification rights created by section 25505 of the California Corporations Code were not governed by sections 877 and 877.6. Id. at 506. The court cited no authority for this holding, stating only that because" }, { "docid": "16128070", "title": "", "text": "INC.; R. GRANT CLINE; R & M INVESTMENT MARKETING; and KENNETH B. FLATING. . As used herein, the term \"partial settlement” refers to a settlement between plaintiffs and fewer than all of the defendants in an action or related actions. . See Orders of this court dated March 3, 1987 and March 30, 1987. . Enacted in 1980, Cal.Civ.Proc.Code § 877.6 is otherwise known as a settlement bar statute. In pertinent part, it provides: (a) Any party to an action wherein it is alleged that two or more parties are joint tort-feasors shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors,.... (c) A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor from any further claims against the settling tortfeasor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault. (d) The party asserting the lack of good faith shall have the burden of proof on that issue. The California Supreme Court has set forth the following criteria for determining whether a particular settlement is made in good faith: [T]he intent and policies underlying section 877.6 require that a number of factors be taken into account including a rough approximation of plaintiffs total recovery and the settlor’s proportionate liability, the amount paid in settlement, the allocation of settlement proceeds among plaintiffs, and a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial. Other relevant considerations include the financial conditions and insurance policy limits of settling defendants, as well as the existence of collusion, fraud, or tortious conduct aimed to injure the interest of non-settling defendants. Finally, practical considerations obviously require that the evaluation be made on the basis of information available at the time of settlement. Tech-Bilt, Inc. v. Woodward-Clyde & Associates, 38 Cal.3d 488, 499, 213 Cal.Rptr. 256, 698 P.2d 159 (1985) (citations omitted). As provided in subdivision (d) of § 877.6," }, { "docid": "16128067", "title": "", "text": "the settlement amount in light of the comparative culpability of the settling defendants and the uncertainties of establishing such liability, and the participation of a magistrate or judge in the settlement negotiations. Id. Court review of a partial settlement in light of such factors will yield ample protection of the non-settling defendants’ interests, and yet allow the settling defendants to confidently buy their peace. Notably, these are the same types of factors which are considered under the California’s settlement bar statute. See Tech-Bilt, Inc. v. Woodward-Clyde & Associates, 38 Cal.3d 488, 213 Cal.Rptr. 256, 698 P.2d 159 (1985). Applying such factors to the Niesar settlement inescapably leads to the conclusion that this is a fundamentally fair and equitable settlement. First and foremost, the settlement is adequate in light of the possible uncollectibility of any larger judgment. At its most practical level, the Nie-sar settlement reflects a recognition that the only substantial recoverable asset of the Niesar defendants is their legal malpractice insurance. The Niesar defendants have submitted detailed evidence, including the opinion of legal counsel retained by class plaintiffs. Moreover, the plaintiffs, who obviously have a keen interest in pursuing the maximum coverage, are also satisfied that no greater coverage is likely to become available. In short, it is highly probable that all of the Niesar defendants’ recoverable assets have already been put on the table for this settlement. Second, even if the insurance coverage were found to be much greater, the settlement amount is still within the reasonable range of the Niesar defendants’ potential share of liability. Plaintiffs herein seek a total recovery in actual damages of some twenty-two million dollars. Taking into account the number of non-settling defendants, the serious nature of the allegations remaining against them, as well as the fact that a settlor should pay less in settlement than if he were found liable after trial, the settlement amount of three million dollars constitutes a plausible and fair assessment of the expected liability of the Niesar defendants. Third, this court was involved throughout in facilitating the Niesar settlement. From this vantage point, the court observed experienced" } ]

[ { "docid": "22538099", "title": "", "text": "criteria have been met. Most of our procedural due process cases in the prison context have turned on the presence or absence of language creating “substantive predicates” to guide discretion. For example, the failure of a Connecticut statute governing commutation of sentences to provide “particularized standards or criteria [to] guide the State’s decisionmakers,” Connecticut Board of Pardons v. Dumschat, 452 U. S., at 467 (Brennan, J., concurring), defeated an inmate’s claim that the State had created a liberty interest. Id., at 465 (majority opinion). See also Olim v. Wakinekona, 461 U. S., at 249-250 (interstate prison transfer left to “completely unfettered” discretion of administrator); Meachum v. Fano, 427 U. S., at 228 (intrastate prison transfer at discretion of officials); Montanye v. Haymes, 427 U. S., at 243 (same). In other instances, we have found that prison regulations or statutes do provide decisionmaking criteria which serve to limit discretion. See, e. g., Hewitt v. Helms, 459 U. S., at 472 (administrative segregation not proper absent particular substantive predicates); Board of Pardons v. Allen, 482 U. S., at 381 (parole granted unless certain standards met, even though the decision is “‘necessarily subjective . . . and predictive’”). We have also articulated a requirement, implicit in our earlier decisions, that the regulations contain “explicitly mandatory language,” i. e., specific directives to the decisionmaker that if the regulations’ substantive predicates are present, a particular outcome must follow, in order to create a liberty interest. See Hewitt v. Helms, 459 U. S., at 471-472. The regulations at issue in Hewitt mandated that certain procedures be followed, and “that administrative segregation will not occur absent specified substantive predicates.” Id., at 472. In Board of Pardons v. Allen, supra, the relevant statute “use[d] mandatory language (‘shall’) to ‘creat[e] a presumption that parole release will be granted’ when the designated findings are made,” 482 U. S., at 377-378, quoting Greenholtz v. Nebraska Penal Inmates, 442 U. S., at 12. See also id., at 11 (statute providing that board “shall order” release unless one of four specified conditions is found). In sum, the use of “explicitly mandatory language,” in" } ]

[ { "docid": "18887623", "title": "", "text": "to be reasonable, we owe it deference. We agree with the Board that Georgia’s parole system does not create a liberty interest in parole protected by the Due Process Clause. III. CONCLUSION The district court found that Georgia’s parole system does not create a liberty interest in parole implicating the protections of the Due Process Clause. Georgia’s parole system contains a statutory presumption against parole and fails to limit meaningfully the discretion of state officials. We therefore agree with the district court that Georgia inmates do not have a legitimate expectation of parole. Because the protections of the Due Process Clause do not arise without a protectable liberty interest, the district court properly granted summary judgment to the Board. AFFIRMED. . There is some debate between the parties as to what documents are properly part of the record on appeal. In order to derive the contents of the Guidelines, the district court relied primarily on the affidavit of Christopher Hamilton, the Director of Legal Services for the Board. Rl-32 Ex. 3. That affidavit, attached to the Board's motion for summary judgment, describes the functioning of the guidelines system and contains a document entitled \"State Board of Pardons and Paroles Parole Decision Guidelines.” Rl-32 Ex. 3, Attach. B. The district court also relied upon Ga.R. ch. 475-3-.05, which sets out the framework for the parole guidelines system. Rl-32 Ex. 2. The document entitled \"Parole Decision Guidelines System,” contained in the Appendix to Appellant's Brief, was introduced for the first time on appeal. Apparently, that document is part of the Board's internal operating manual. The Board contends that this document is not properly part of the record on appeal. For two reasons, and in the interest of judicial economy, we will consider the document in this appeal. First, the Board has never contended that this document is not a true and correct copy of the guidelines system. See Sultenfuss v. Snow, 7 F.3d 1543, 1548 n. 21 (11th Cir.1993) (panel opinion considering document for same reason), vacated and reh'g en banc granted, 14 F.3d 572 (11th Cir.1994). Second, even taking into consideration" }, { "docid": "18887642", "title": "", "text": "to a liberty interest in parole. In so concluding, the majority makes three fundamental mistakes, which I discuss separately below. First, the majority fails to compare the Georgia parole scheme with the parole schemes at issue in the two seminal Supreme Court cases, Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, and Board of Pardons v. Allen. Such a comparison demonstrates that the Georgia parole scheme necessarily creates a liberty interest in parole. Second, the majority erroneously interprets O.C.G.A. § 42-9-42 as a presumption against parole, rather than as a further indication of the legislative intent to cabin the discretion of the Board. Finally, the majority erroneously defers to the Board’s purported reservation of unfettered discretion to ignore the Guidelines for any reason or for no reason at all. The Board’s position is nonsensical, patently unreasonable, and contrary to the history, the purpose, and the mandates of O.C.G.A. § 42-9-40. Accordingly, I dissent. I. Under Greenholtz and Its Progeny, the Georgia Parole Scheme Creates a Liberty Interest In Parole A state creates a protected liberty interest “by placing substantive limitations on official discretion.” The most common means by which a state creates such an interest is “by establishing ‘substantive predicates’ to govern official decisionmaking, and, further, by mandating the outcome to be reached upon a finding that the relevant criteria have been met.” Thus, “the repeated use of explicitly mandatory language in connection with requiring specific substantive predicates demands a conclusion that the State has created a protected liberty interest.” The “substantive predicates” necessary to create a liberty interest have been described as “ ‘particularized standards or criteria [that] guide the State’s decisionmakers.’” Greenholtz is the seminal case on liberty interests in parole. The Nebraska parole statute at issue in Greenholtz provided, in pertinent part: “Whenever the Board of Parole considers the release of a committed offender who is eligible for release on parole, it shall order his release unless it is of the opinion that his release should be deferred because: “(a) There is a substantial risk that he will not conform to the conditions of parole; “(b)" }, { "docid": "18887641", "title": "", "text": "is what this country is all about. Some of these evils led the Governor and legislature of Georgia in 1980 to change the existing system. For reasons not clear, the majority of the court decides to ignore the unequivocal change made in the 1980 law (O.C.G.A. § 42-9-40). The majority holds that the Parole Board has the same unbridled and arbitrary discretion that it had before the 1980 legislation. The 1980 statute mandates implementation of a parole guidelines system, mandates the specified criteria that the system must take into consideration, and mandates use of the system in determining parole actions. In response to the mandates of O.C.G.A. § 42-9-40, the Board promulgated Guidelines that require application of particularized criteria, which determine an inmate’s Tentative Parole Month. The Guidelines describe the Tentative Parole Month as the month “during which the offender may expect to be released.” Notwithstanding the mandatory language, the particularized criteria that guide decisionmaking, and the explicit language of expectancy of release, the majority concludes that the Georgia parole scheme does not give rise to a liberty interest in parole. In so concluding, the majority makes three fundamental mistakes, which I discuss separately below. First, the majority fails to compare the Georgia parole scheme with the parole schemes at issue in the two seminal Supreme Court cases, Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, and Board of Pardons v. Allen. Such a comparison demonstrates that the Georgia parole scheme necessarily creates a liberty interest in parole. Second, the majority erroneously interprets O.C.G.A. § 42-9-42 as a presumption against parole, rather than as a further indication of the legislative intent to cabin the discretion of the Board. Finally, the majority erroneously defers to the Board’s purported reservation of unfettered discretion to ignore the Guidelines for any reason or for no reason at all. The Board’s position is nonsensical, patently unreasonable, and contrary to the history, the purpose, and the mandates of O.C.G.A. § 42-9-40. Accordingly, I dissent. I. Under Greenholtz and Its Progeny, the Georgia Parole Scheme Creates a Liberty Interest In Parole A state creates a protected" }, { "docid": "18887598", "title": "", "text": "actions on all inmates, except those serving life sentences, who will become statutorily eligible for parole consideration. The system shall be consistent with the board’s primary goal of protecting society and shall take into consideration the severity of the current offense, the inmate’s prior criminal history, the inmate’s conduct, and the social factors which the board has found to have value in predicting the probability of further criminal behavior and successful adjustment under parole supervision. O.C.G.A. § 42-9-40(a). Section 42-9-40 is qualified, however, by section 42-9-42, which provides in relevant part: No inmate shall be placed on parole until and unless the board shall find that there is reasonable probability that, if he is so released, he will live and conduct himself as a respectable and law-abiding person and that his release will be compatible with his own welfare and the welfare of society. Furthermore, no person shall be released on pardon or placed on parole unless and until the board is satisfied that he will be suitably employed in self-sustaining employment or that he will not become a public charge. Id. § 42-9-42(c). Pursuant to these provisions, the Board adopted and maintains the Georgia Parole Decision Guidelines System (the “Guidelines”). That system is embodied in the rules and regulations passed by the Board pursuant to O.C.G.A. § 42-9-40 and in accordance with the Georgia Administrative Procedure Act, O.C.G.A. § 50-13-1 et seq. The stated purpose of the Guidelines is as follows: “In the parole decision process, the Board shall utilize a set of guidelines which consider both the severity of an individual’s offense and the likelihood of the individual successfully completing a term of supervision on parole.” Parole Decision Guidelines System ¶ 8-1.01. Other rules and regulations of the Board also shed light on the purpose and function of the system. Chapter 475-3-.05, for instance, provides as follows: The Parole Decision Guidelines System is an aid to the Board in making more consistent, soundly based and explainable parole decisions and does not create a liberty interest. The Board specifically reserves the right to exercise its discretion under Georgia Law" }, { "docid": "18887621", "title": "", "text": "does not create a protected liberty interest is strengthened by another factor, the Board’s own interpretation of the Guidelines. It is a well-established rule of statutory construction in Georgia that the interpretation of a statute or regulation by an administrative agency responsible for enforcement of the provision is entitled to great deference, unless clearly erroneous. E.g., Hospital Auth. v. State Health Planning Agency, 211 Ga.App. 407, 408, 438 S.E.2d 912, 914 (1993), cert. denied (Ga.1994); National Advertising Co. v. Department of Transp., 149 Ga.App. 334, 337, 254 S.E.2d 571, 573 (1979); Mason v. Service Loan & Fin. Co., 128 Ga.App. 828, 831, 198 S.E.2d 391, 394 (1973); Belton v. Columbus Fin. & Thrift Co., 127 Ga.App. 770, 772, 195 S.E.2d 195, 197 (1972). Here, the Board is the administrative agency responsible for implementation of the statute and Guidelines under consideration. Under O.C.G.A. § 42-9-40, the Board has the responsibility for adopting, implementing, and maintaining a parole guidelines system. Pursuant to that statute, the Board adopted the Guidelines under consideration here and is the sole administrative agency responsible for administering the parole system. Therefore, unless its interpretation is unreasonable, it deserves great deference. The Board has unequivocally evinced its opinion that the statute and Guidelines do not create a liberty interest in parole. In several portions of the rules and regulations promulgated pursuant to O.C.G.A. § 42-9-40, the Board has expressly reserved the right to depart from the grid recommendation. See Ga.R. eh. 475-3-.05. In fact, the portion of the Guidelines that contains the parole decision grid has the following “NOTICE” in capital letters at the top of the page: THE BOARD SPECIFICALLY RESERVES THE RIGHT TO EXERCISE ITS DISCRETION UNDER GEORGIA LAW TO DENY PAROLE EVEN THOUGH GUIDELINES CRITERIA ARE MET BY AN INMATE. IT IS NOT THE INTENTION OF THE BOARD TO CREATE A LIBERTY INTEREST OF THE TYPE DESCRIBED IN GREEN-HOLTZ V. NEBRASKA PENAL INMATES 442 US 1 (1979). Parole Decision Guidelines System, Anne-xure 2. The Board’s unequivocal interpretation of the statute and Guidelines, therefore, is that no protected liberty interest is created. Because we find this interpretation" }, { "docid": "18887624", "title": "", "text": "the Board's motion for summary judgment, describes the functioning of the guidelines system and contains a document entitled \"State Board of Pardons and Paroles Parole Decision Guidelines.” Rl-32 Ex. 3, Attach. B. The district court also relied upon Ga.R. ch. 475-3-.05, which sets out the framework for the parole guidelines system. Rl-32 Ex. 2. The document entitled \"Parole Decision Guidelines System,” contained in the Appendix to Appellant's Brief, was introduced for the first time on appeal. Apparently, that document is part of the Board's internal operating manual. The Board contends that this document is not properly part of the record on appeal. For two reasons, and in the interest of judicial economy, we will consider the document in this appeal. First, the Board has never contended that this document is not a true and correct copy of the guidelines system. See Sultenfuss v. Snow, 7 F.3d 1543, 1548 n. 21 (11th Cir.1993) (panel opinion considering document for same reason), vacated and reh'g en banc granted, 14 F.3d 572 (11th Cir.1994). Second, even taking into consideration the language from this document, we find that a liberty interest in parole does not exist. Therefore, our result would be unaffected by exclusion of the document. .Significantly, the first paragraph of Annexure 2 provides: NOTICE: THE BOARD SPECIFICALLY RESERVES THE RIGHT TO EXERCISE ITS DISCRETION UNDER GEORGIA LAW TO DENY PAROLE EVEN THOUGH GUIDELINES CRITERIA ARE MET BY AN INMATE. IT IS NOT THE INTENTION OF THE BOARD TO CREATE A “LIBERTY INTEREST” OF THE TYPE DESCRIBED IN GREENHOLTZ VS. NEBRASKA PENAL INMATES 442 US 1 (1979). Parole Decision Guidelines System, Annexure 2. . See supra text accompanying note 2. . Annexure 2 even provides a procedural safeguard for reviewing extreme departures from the Guidelines: \"If the Board's tentative decision is to depart from the Guidelines recommendation, and the number of months to serve is more than three years beyond the Guidelines recommendation, the case will be reviewed at the Guidelines recommendation and each three years thereafter.” Parole Decision Guidelines System, Anne-xure 2. . Sultenfuss was released on parole after serving approximately four and" }, { "docid": "18887627", "title": "", "text": "are met and one that mandates release unless certain criteria are met. Allen, 482 U.S. at 378, 107 S.Ct. at 2421. . This interpretation is the only way that the two provisions can be harmonized. Section 42-9-42 prohibits the Board from releasing an inmate on parole until it believes certain subjective criteria are met. Thus, if application of the Guidelines in a particular case results in a recommendation of parole, but the Board is not satisfied that the criteria in section 42-9-42 are met, the Board is statutorily required to depart from the grid recommendation. . While Sultenfuss relies heavily on certain language from the Guidelines to show the existence of a liberty interest, he ignores or downplays language that expressly refutes his interpretation. Sultenfuss cannot have it both ways. If, in searching for a liberty interest, we look to the language that the Board used in drafting the Guidelines, we must look at all of the language, not just portions of it. Taking as a whole all of the rales and regulations promulgated by the Board pursuant to O.C.G.A. § 42-9-40, we must agree with the Board's interpretation that the parole system does not create a liberty interest in parole. CARNES, Circuit Judge, dissenting: I dissent from the Court’s failure to certify to the Georgia Supreme Court the unsettled questions of state law which control the disposition of this case. The majority opinion and Judge Clark’s dissenting opinion disagree not so much about applicable federal constitutional law as about applicable state law. The disagreement is over whether the relevant Georgia statutes permit the Parole Board to reserve to itself essentially unfettered discretion, which is what it has attempted to do with the adoption of Ga.R. ch. 475-3-.05 and Anne- xure 2 to the Parole Decision Guidelines System. The state law validity of those two Board-adopted provisions is a premise essential to the majority’s conclusion that the Georgia parole system has not created a liberty interest. Likewise, the state law invalidity of those two provisions is a premise essential to Judge Clark’s conclusion that a liberty interest has been created." }, { "docid": "18887615", "title": "", "text": "depart from the grid recommendation. The criteria in the Guidelines provide a framework to “help the Board make a more consistent, soundly based, prompt, and explainable parole decision.” Parole Decision Guidelines System, Annexure 2. The Guidelines were not intended to produce a predetermined outcome upon rote application of specific criteria. Sultenfuss places great reliance on language from the parole statute mandating that the “guidelines system shall be used in determining parole actions on all inmates.” O.C.G.A. § 42-9-40. He argues that this language and the language in the Guidelines dictating the criteria to be considered “constitute specific, substantive limitations on the board’s exercise of discretion.” Appellant’s En Banc Brief at 20-21. We disagree; this language is consistent with the substantial discretion that the Guidelines reserve for the Board. The Board’s decision to depart from the grid recommendation does not mean that the Guidelines were not used in determining parole action. The Board may utilize the Guidelines as a framework for making parole determinations, while still exercising the authority to depart from the grid recommendation if other factors, not adequately considered by the Guidelines, warrant such a decision. Therefore, we find that Georgia’s parole system does not place limitations on the Board’s discretion sufficient to create a liberty interest in parole. Second, we examine whether the system mandates the outcome that must be reached if the relevant criteria have been met. Thompson, 490 U.S. at 462, 109 S.Ct. at 1909. Where the statute or regulation creates a presumption that release will be granted upon a finding that the substantive predicates have been met, a liberty interest in parole exists. Thompson, 490 U.S. at 463-64, 109 S.Ct. at 1910. In those cases where the Supreme Court has found a liberty interest, the Court has focused on the presumption of release found in the relevant statute or guidelines. See, e.g., Allen, 482 U.S. at 376, 107 S.Ct. at 2420 (“the board shall release on parole ... any [inmate] when in its opinion there is reasonable probability that the prisoner can be released without detriment to the prisoner or to the community” (emphasis omitted)" }, { "docid": "18887645", "title": "", "text": "that the prisoner can be released without detriment to the prisoner or to the community!;.] “(2) A parole shall be ordered only for the best interests of society and not as an award of clemency or a reduction of sentence or pardon. A prisoner shall be placed on parole only when the board believes that he is able and willing to fulfill the obligations of a law-abiding citizen.” Relying on the use of “mandatory language” and “substantive predicates,” the Supreme Court concluded that this statute, like the Nebraska statute at issue in Greenholtz, created a liberty interest in parole. As further support for its conclusion, the Court pointed to the legislative history of the Montana statute: the statute quoted above was enacted in 1955 to replace a 1907 statute that had granted absolute discretion to the Board. The Court saw the 1955 change in the law as an “indication of a legislative intent to cabin the discretion of the Board.” It is inconceivable that the Nebraska and Montana statutes at issue in Greenholtz and Allen create a liberty interest in parole while the Georgia parole scheme does not. The Georgia statute, which is entitled “Parole guidelines system,” provides: (a) The board shall adopt, implement, and maintain a parole guidelines system for determining parole action. The guidelines system shall be used in determining parole actions on all inmates, except those serving life sentences, who will become statutorily eligible for parole consideration. The system shall be consistent with the board’s primary goal of protecting society and shall take into consideration the severity of the current offense, the inmate’s prior criminal history, the inmate’s conduct, and the social factors which the board has found to have value in predicting the probability of further criminal behavior and successful adjustment under parole supervision. (b) The guidelines system required by subsection (a) of this Code section shall be adopted by rules or regulations of the board. The rules or regulations shall be adopted in conformity with Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.” Certainly the language of this statute is no less “mandatory”" }, { "docid": "18887616", "title": "", "text": "other factors, not adequately considered by the Guidelines, warrant such a decision. Therefore, we find that Georgia’s parole system does not place limitations on the Board’s discretion sufficient to create a liberty interest in parole. Second, we examine whether the system mandates the outcome that must be reached if the relevant criteria have been met. Thompson, 490 U.S. at 462, 109 S.Ct. at 1909. Where the statute or regulation creates a presumption that release will be granted upon a finding that the substantive predicates have been met, a liberty interest in parole exists. Thompson, 490 U.S. at 463-64, 109 S.Ct. at 1910. In those cases where the Supreme Court has found a liberty interest, the Court has focused on the presumption of release found in the relevant statute or guidelines. See, e.g., Allen, 482 U.S. at 376, 107 S.Ct. at 2420 (“the board shall release on parole ... any [inmate] when in its opinion there is reasonable probability that the prisoner can be released without detriment to the prisoner or to the community” (emphasis omitted) (first alteration in original)); Hewitt v. Helms, 459 U.S. 460, 470 n. 6, 103 S.Ct. 864, 871 n. 6, 74 L.Ed.2d 675 (1983) (“If no behavior violation has occurred, the inmate must be released as soon as the reason for the security concern has abat-ed_”); Greenhottz, 442 U.S. at 11, 99 S.Ct. at 2106 (“the Board ... shall order [the inmate’s] release unless it is of the opinion that his release should be deferred because” one of four criteria is met). We do not find such a mandate in the Georgia statutes and regulations. Neither the relevant statutes nor the Guidelines contain any language mandating the outcome that must be reached after application of the specified procedures. Conversely, the Georgia statutes actually create a presumption against parole. Section 42-9-42, O.C.G.A., provides that “[n]o inmate shall be placed on parole until and unless the board shall find that there is reasonable probability that, if he is so released, he will live and conduct himself as a respectable and law-abiding person and that his release will be" }, { "docid": "18887618", "title": "", "text": "compatible with his own welfare and the welfare of society.” O.C.G.A. § 42-9-42(c). This section must be read as a qualification of section 42-9-40, the provision requiring adoption of the parole guideline system. Thus, while the legislature has required the Board to adopt a guideline system to be used as a framework for making more consistent parole decisions, it also preserved the Board’s authority to use its discretion in making final parole decisions. The statute and regulations, therefore, do not mandate that release be granted if the Guidelines criteria is met. Finally, we look at the relevant statute and regulations to see if they contain explicitly mandatory language directing the decisionmaker to follow certain procedures. Thompson, 490 U.S. at 462, 109 S.Ct. at 1909-10. Although this third factor largely merges with the second, we find the use of explicitly mandatory language to be an important factor in determining whether a liberty interest exists. It should be obvious that the mandatory language requirement is not an invitation to courts to search regulations for any imperative that might be found. The search is for relevant mandatory language that expressly requires the decisionmaker to apply certain substantive predicates in determining whether an inmate may be deprived of the particular interest in question. Id. at 464 n. 4, 109 S.Ct. at 1910 n. 4. We recognized this crucial distinction in Staton v. Wainwright, 665 F.2d 686 (5th Cir. Unit B), cert. denied, 456 U.S. 909, 102 S.Ct. 1757, 72 L.Ed.2d 166 (1982), where we found no pro-tectable liberty interest in the Florida parole statutes. Although the Florida statutes were replete with mandatory language, we recognized that this language dictated what criteria should be considered, not what result must follow if those criteria are met. Id. at 688. Similarly, as the panel in this ease recognized, the Georgia statutes and regulations frequently use mandatory language. See Sultenfuss, 7 F.3d at 1547-49 (highlighting use of the word “shall” in the relevant statutes and regulations). We find no mandatory language, however, expressly dictating the outcome that must follow if the criteria are met. The statutes mandate the" }, { "docid": "18887597", "title": "", "text": "BIRCH, Circuit Judge: In this case, we must decide whether the current Georgia parole system, as embodied in the Georgia Constitution, the Georgia statutes, and the rules and guidelines promulgated pursuant to the statutes, creates a liberty interest in parole protected by the Due Process Clause of the Fourteenth Amendment. The district court found no protected liberty interest, and we affirm. I. BACKGROUND A The Georgia Parole Guidelines System The Georgia parole system is set out in the Georgia Constitution, several Georgia stat utes, and the rules and regulations promulgated by the state Board of Pardons and Paroles (the “Board”) pursuant to those statutes. The Georgia Constitution vests the Board with the exclusive power to grant reprieves, pardons, and paroles. Ga. Const, art. IV, § 2, ¶ 2. In 1980, the Georgia legislature enacted a law requiring the Board to implement a parole guidelines system. That statute provides in pertinent part: The board shall adopt, implement, and maintain a parole guidelines system for determining parole action. The guidelines system shall be used in determining parole actions on all inmates, except those serving life sentences, who will become statutorily eligible for parole consideration. The system shall be consistent with the board’s primary goal of protecting society and shall take into consideration the severity of the current offense, the inmate’s prior criminal history, the inmate’s conduct, and the social factors which the board has found to have value in predicting the probability of further criminal behavior and successful adjustment under parole supervision. O.C.G.A. § 42-9-40(a). Section 42-9-40 is qualified, however, by section 42-9-42, which provides in relevant part: No inmate shall be placed on parole until and unless the board shall find that there is reasonable probability that, if he is so released, he will live and conduct himself as a respectable and law-abiding person and that his release will be compatible with his own welfare and the welfare of society. Furthermore, no person shall be released on pardon or placed on parole unless and until the board is satisfied that he will be suitably employed in self-sustaining employment or that he" }, { "docid": "18887650", "title": "", "text": "decision turned upon the Supreme Court’s finding that language of the Nebraska statute created an “expectancy of release” on parole. The provision quoted above, coupled with the mandated procedure by which the Board must arrive at the recommended months-to-serve, creates more of an “expectancy of release” than the Nebraska and Montana statutes at issue in Green-holtz and Allen. Other provisions in the Guidelines confirm this “expectancy of release.” For example, in a section setting out the benefits of the system, the Guidelines provide: “By eliminating the uncertainty of release dates, inmate morale and sincere participation in rehabilitation programs is enhanced.” The Guidelines eliminate uncertainty by mandating that an inmate’s Tentative Parole Month, during which he may expect to be released, be set by applying the Parole Decision Grid to the inmate’s Crime Severity Level and Parole Success Likelihood Score. Thus, like the statutes at issue in Greenholtz and Allen, the Georgia parole written procedures use mandatory language that requires the Board to apply particularized criteria to arrive at a parole decision. Under Greenholtz and Allen, the Georgia scheme creates a liberty interest in parole. The majority’s reasoning is not grounded in the Greenholtz and Allen decisions. I give three specific examples. First, the majority begins its discussion of the Georgia parole system with the statement: “we must keep in mind that our analysis is inherently subjective.” The majority does not cite and I am not aware of any authority to support the proposition that a Greenholtz-tjpe analysis is “inherently subjective.” Under Greenholtz and its progeny, we must look to the language of the state parole scheme and determine whether that language places “substantive limitations on official discretion.” I see nothing “inherently subjective” in this analysis. Second, the majority concedes that “the Guidelines provide a set of particularized criteria that the Board must consider in making parole determinations.” Nevertheless, the majority concludes that this “set of particularized criteria” does not indicate the existence of a liberty interest because “the Guidelines leave the Board significant discretion in applying the various factors.... The Guidelines do not envision the rote application of specific criteria" }, { "docid": "6150393", "title": "", "text": "creates a protected liberty interest by placing substantive limitations on official discretion.” Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 109 S.Ct. 1904, 1909, 104 L.Ed.2d 506 (1989) (quoting Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813 (1983)). The Court stated that “the most common manner in which a State creates a liberty interest is by establishing ‘substantive predicates’ to govern official decisionmaking, and, further, by mandating the outcome to be reached upon a finding that the relevant criteria have been met.” Id. (citing Hewitt v. Helms, 459 U.S. 460, 472, 103 S.Ct. 864, 871, 74 L.Ed.2d 675 (1983)). Thus, the presence of substantive predicates guiding the prison officials’ conduct is required to establish procedural due process protection. A liberty interest is created when the statute or regulation in question mandates “that if the regulations’ substantive predicates are present, a particular outcome must follow.” Id. 109 S.Ct. at 1910. In evaluating the substantive guidelines contained in a South Dakota parole statute to determine whether a liberty interest had been created, this court held: Even if substantive guidelines are to be considered, however, unless these guidelines limit the parole board’s discretion to release the prisoner, no liberty interest in parole is established. In other words, for a state to create a protectible liberty interest the statute or regulation must require release upon satisfaction of the substantive criteria listed. Dace v. Mickelson, 816 F.2d 1277, 1280 (8th Cir.1987) (en banc) (citation omitted). A liberty interest is created only if an official must take specific action based upon the substantive guidelines set forth. See id. Here, the substantive guidelines that DeGidio claims created a liberty interest are in the form of a consent decree entered into to remedy violations of the eighth amendment. The decree required certain improvements in the conditions of confinement at Stillwater. Some of the provisions related directly to providing medical care. However, the decree does not place substantive restrictions on the exercise of discretion by Stillwater’s officials. None of the decree’s provisions require that the officials do anything based upon substantive criteria." }, { "docid": "18887622", "title": "", "text": "agency responsible for administering the parole system. Therefore, unless its interpretation is unreasonable, it deserves great deference. The Board has unequivocally evinced its opinion that the statute and Guidelines do not create a liberty interest in parole. In several portions of the rules and regulations promulgated pursuant to O.C.G.A. § 42-9-40, the Board has expressly reserved the right to depart from the grid recommendation. See Ga.R. eh. 475-3-.05. In fact, the portion of the Guidelines that contains the parole decision grid has the following “NOTICE” in capital letters at the top of the page: THE BOARD SPECIFICALLY RESERVES THE RIGHT TO EXERCISE ITS DISCRETION UNDER GEORGIA LAW TO DENY PAROLE EVEN THOUGH GUIDELINES CRITERIA ARE MET BY AN INMATE. IT IS NOT THE INTENTION OF THE BOARD TO CREATE A LIBERTY INTEREST OF THE TYPE DESCRIBED IN GREEN-HOLTZ V. NEBRASKA PENAL INMATES 442 US 1 (1979). Parole Decision Guidelines System, Anne-xure 2. The Board’s unequivocal interpretation of the statute and Guidelines, therefore, is that no protected liberty interest is created. Because we find this interpretation to be reasonable, we owe it deference. We agree with the Board that Georgia’s parole system does not create a liberty interest in parole protected by the Due Process Clause. III. CONCLUSION The district court found that Georgia’s parole system does not create a liberty interest in parole implicating the protections of the Due Process Clause. Georgia’s parole system contains a statutory presumption against parole and fails to limit meaningfully the discretion of state officials. We therefore agree with the district court that Georgia inmates do not have a legitimate expectation of parole. Because the protections of the Due Process Clause do not arise without a protectable liberty interest, the district court properly granted summary judgment to the Board. AFFIRMED. . There is some debate between the parties as to what documents are properly part of the record on appeal. In order to derive the contents of the Guidelines, the district court relied primarily on the affidavit of Christopher Hamilton, the Director of Legal Services for the Board. Rl-32 Ex. 3. That affidavit, attached to" }, { "docid": "18887612", "title": "", "text": "a finding that the substantive predicates are met.” Id. at 464, 109 S.Ct. at 1910. The Court also focused on language in the regulations in which the administrative staff reserved the right to allow or disallow prison visits. While the Supreme Court has written extensively on whether various prison guidelines create a liberty interest, the Court has declined to set forth any definitve rules. Instead, the Court has emphasized that “whether any ... state statute provides a protectible entitlement must be decided on a case-by-case basis.” Greenholtz, 442 U.S. at 12, 99 S.Ct. at 2106. In conducting this case-specific analysis, we are bound by certain principles. After reviewing the relevant caselaw from the Supreme Court and this circuit, we conclude that three, sometimes overlapping, factors are crucial in determining whether a liberty interest is created: (1) whether the system places substantive limitations on the discretion of the decisionmakers; (2) whether the system mandates the outcome that must follow if the substantive predicates are met; and (3) whether the relevant statutes and regulations contain explicitly mandatory language dictating the procedures that must be followed and the result that must be reached if the relevant criteria are satisfied. We explain these factors in more detail below as we examine their application to Georgia’s parole system. C. The Georgia Parole System In examining these three factors in relation to the Georgia parole system, we must keep in mind that our analysis is inherently subjective.. The Supreme Court has recognized that “[n]either the drafting of regulations nor their interpretation can be reduced to an exact science.” Thompson, 490 U.S. at 462, 109 S.Ct. at 1909. The Georgia statutes and regulations must be read together to derive the overriding purpose and function of the parole guidelines system. With this caveat in mind, we proceed to analyze the Georgia parole system in light of the three factors set forth above. First, we must determine whether the system places substantive predicates on the discretion of state officials. See Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813 (1983). The inmate must establish" }, { "docid": "18887611", "title": "", "text": "a liberty interest existed. In other cases, however, the Court has found that penal regulations and parole guidelines do not implicate the Due Process Clause where no liberty interest exists. In Thompson, for instance, the Court analyzed Kentucky prison regulations to determine whether inmates had a liberty interest in visitation. There, the Court focused on the discretion vested in state decisionmakers: “Stated simply, ‘a State creates a protected liberty interest by placing substantive limitations on official discretion.’ ” Thompson, 490 U.S. at 462, 109 S.Ct. at 1909 (quoting Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813 (1983)). The Court also emphasized the “requirement, implicit in our earlier decisions, that the regulations contain ‘explicitly mandatory language,’ i.e., specific directives to the decisionmaker that if the regulations’ substantive predicates are present, a particular outcome must follow.” Id. at 463, 109 S.Ct. at 1910. The Court found that the regulations at issue lacked the requisite mandatory language because “[t]hey stop short of requiring that a particular result is to be reached upon a finding that the substantive predicates are met.” Id. at 464, 109 S.Ct. at 1910. The Court also focused on language in the regulations in which the administrative staff reserved the right to allow or disallow prison visits. While the Supreme Court has written extensively on whether various prison guidelines create a liberty interest, the Court has declined to set forth any definitve rules. Instead, the Court has emphasized that “whether any ... state statute provides a protectible entitlement must be decided on a case-by-case basis.” Greenholtz, 442 U.S. at 12, 99 S.Ct. at 2106. In conducting this case-specific analysis, we are bound by certain principles. After reviewing the relevant caselaw from the Supreme Court and this circuit, we conclude that three, sometimes overlapping, factors are crucial in determining whether a liberty interest is created: (1) whether the system places substantive limitations on the discretion of the decisionmakers; (2) whether the system mandates the outcome that must follow if the substantive predicates are met; and (3) whether the relevant statutes and regulations contain explicitly mandatory" }, { "docid": "18887620", "title": "", "text": "implementation of a guidelines system, and the Guidelines mandate certain procedures that must be followed. But the Guidelines do not mandate release if the criteria are met. As noted above, the statutory presumption is against parole unless certain subjective criteria are satisfied. See O.C.G.A. § 42-9-42. Viewing Georgia’s parole system in its entirety, we conclude that no protected liberty interest in parole is created. To give rise to a liberty interest in parole, the statutes and regulations must meaningfully limit the discretion of state officials. Here, the substantial discretion reserved by the Board belies any claim to a reasonable expectation of parole. Although the Board is required to follow some relatively strict procedures, the statutes and the Guidelines, acting in conjunction, do not mandate the grant of parole if specified criteria are satisfied. Instead, the system contains a statutory presumption against parole and an explicit reservation of authority to depart from the grid recommendation, negating any reasonable claim of an entitlement to parole. D. Deference to Administrative Interpretations Our conclusion that the Georgia parole system does not create a protected liberty interest is strengthened by another factor, the Board’s own interpretation of the Guidelines. It is a well-established rule of statutory construction in Georgia that the interpretation of a statute or regulation by an administrative agency responsible for enforcement of the provision is entitled to great deference, unless clearly erroneous. E.g., Hospital Auth. v. State Health Planning Agency, 211 Ga.App. 407, 408, 438 S.E.2d 912, 914 (1993), cert. denied (Ga.1994); National Advertising Co. v. Department of Transp., 149 Ga.App. 334, 337, 254 S.E.2d 571, 573 (1979); Mason v. Service Loan & Fin. Co., 128 Ga.App. 828, 831, 198 S.E.2d 391, 394 (1973); Belton v. Columbus Fin. & Thrift Co., 127 Ga.App. 770, 772, 195 S.E.2d 195, 197 (1972). Here, the Board is the administrative agency responsible for implementation of the statute and Guidelines under consideration. Under O.C.G.A. § 42-9-40, the Board has the responsibility for adopting, implementing, and maintaining a parole guidelines system. Pursuant to that statute, the Board adopted the Guidelines under consideration here and is the sole administrative" }, { "docid": "18887619", "title": "", "text": "might be found. The search is for relevant mandatory language that expressly requires the decisionmaker to apply certain substantive predicates in determining whether an inmate may be deprived of the particular interest in question. Id. at 464 n. 4, 109 S.Ct. at 1910 n. 4. We recognized this crucial distinction in Staton v. Wainwright, 665 F.2d 686 (5th Cir. Unit B), cert. denied, 456 U.S. 909, 102 S.Ct. 1757, 72 L.Ed.2d 166 (1982), where we found no pro-tectable liberty interest in the Florida parole statutes. Although the Florida statutes were replete with mandatory language, we recognized that this language dictated what criteria should be considered, not what result must follow if those criteria are met. Id. at 688. Similarly, as the panel in this ease recognized, the Georgia statutes and regulations frequently use mandatory language. See Sultenfuss, 7 F.3d at 1547-49 (highlighting use of the word “shall” in the relevant statutes and regulations). We find no mandatory language, however, expressly dictating the outcome that must follow if the criteria are met. The statutes mandate the implementation of a guidelines system, and the Guidelines mandate certain procedures that must be followed. But the Guidelines do not mandate release if the criteria are met. As noted above, the statutory presumption is against parole unless certain subjective criteria are satisfied. See O.C.G.A. § 42-9-42. Viewing Georgia’s parole system in its entirety, we conclude that no protected liberty interest in parole is created. To give rise to a liberty interest in parole, the statutes and regulations must meaningfully limit the discretion of state officials. Here, the substantial discretion reserved by the Board belies any claim to a reasonable expectation of parole. Although the Board is required to follow some relatively strict procedures, the statutes and the Guidelines, acting in conjunction, do not mandate the grant of parole if specified criteria are satisfied. Instead, the system contains a statutory presumption against parole and an explicit reservation of authority to depart from the grid recommendation, negating any reasonable claim of an entitlement to parole. D. Deference to Administrative Interpretations Our conclusion that the Georgia parole system" }, { "docid": "18887628", "title": "", "text": "the Board pursuant to O.C.G.A. § 42-9-40, we must agree with the Board's interpretation that the parole system does not create a liberty interest in parole. CARNES, Circuit Judge, dissenting: I dissent from the Court’s failure to certify to the Georgia Supreme Court the unsettled questions of state law which control the disposition of this case. The majority opinion and Judge Clark’s dissenting opinion disagree not so much about applicable federal constitutional law as about applicable state law. The disagreement is over whether the relevant Georgia statutes permit the Parole Board to reserve to itself essentially unfettered discretion, which is what it has attempted to do with the adoption of Ga.R. ch. 475-3-.05 and Anne- xure 2 to the Parole Decision Guidelines System. The state law validity of those two Board-adopted provisions is a premise essential to the majority’s conclusion that the Georgia parole system has not created a liberty interest. Likewise, the state law invalidity of those two provisions is a premise essential to Judge Clark’s conclusion that a liberty interest has been created. The competing syllogisms are each logical: each one’s , conclusion follows from its premises. I agree with the majority that if the two provisions in question are valid under state law, so that the Board does have the substantial discretion it claims, then no liberty interest has been created. I also agree with Judge Clark that if the two provisions are not valid under state law, so that the Board lacks the substantial discretion it claims, then a liberty interest has been created. It is the accuracy of the competing state law premises that is in dispute. Only one of them can be correct, and the case turns on which one is. The majority makes a strong argument that the Board’s adoption of Rule 475-3-.05 and Annexure 2 was within its authority under Georgia law. Judge Clark, joined by three other judges of this Court, makes an equally strong argument to the contrary. I do not know whether the majority or Judge Clark is right about the Georgia law question, but I do know where" } ]

[ { "docid": "22849182", "title": "", "text": "may increase the sentence above the authorized guideline range. The extent of the increase ordinarily should depend on the dangerousness of the weapon, the manner in which it was used, and the extent to which its use endangered others. The discharge of a firearm might warrant a substantial sentence increase. (Emphasis added.) Either use or possession of a firearm therefore suffices to support a sentence above the calculated guideline. The firearm need not, as Otero contends, have played a significantly more prominent role than it would in the ordinary case, whatever role firearms play in an “ordinary” case of cocaine distribution, for firearm use or possession per se is a permissible basis for upward adjustment. The commentary to Guideline § 2Dl.l(b)(l) explains when an upward adjustment for weapon possession should be made: The enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons. The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense. For example, the enhancement would not be applied if the defendant, arrested at his residence, had an unloaded hunting rifle in the closet. While Otero asserts, and the probation officer conceded, that Otero could not be convicted under Texas law for the misdemeanor offense of unlawfully carrying a weapon because he was traveling outside the county of his residence, that is not determinative. Otero mistakenly relies on United States v. Prieto-Tejas; that case deals with an interpretation of 18 U.S.C. § 924(c)(2), which formerly made it an element of the offense that carrying of a firearm during a crime be, in itself, illegal. The commentary to Section 2D1.1 indicates that the enhancement in the offense level for possession is not dependent on whether the weapon is carried illegally. The record does not reflect that Otero possessed a firearm when the cocaine was delivered. The addendum to the presentence report, however, concludes that Otero transported the cocaine from Houston to San Antonio and that he had the firearm in his possession during the trip. The telephone communications between the undercover" } ]

[ { "docid": "8397089", "title": "", "text": "appeals “shall give due deference to the district court’s application of the guidelines to the facts.” 18 U.S.C. 3742(e). In the present case, such “due deference” requires that we review the district court’s fact-based application of the guidelines only for clear error. See, e.g., United States v. Jimenez-Otero, 898 F.2d 813, 815 (1st Cir.1990) (reviewing district court’s application of guidelines to undisputed facts only for clear error). And where more than one reasonable inference may be drawn from undisputed facts, “the sentencing court’s choice among supportable alternatives cannot be clearly erroneous.” United States v. Ruiz, 905 F.2d 499, 508 (1st Cir.1990). Defendant first complains that the district court erred in enhancing his sentence pursuant to section 2D1.1(b)(1) of the Guidelines, which provides for an increase of two levels where “a dangerous weapon (including a firearm) was possessed during commission of the offense_” Defendant’s complaint is without merit. The Commentary to section 2D1.1(b)(1) explains that “[t]he enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons.” Id. (Commentary). Given this concern, the Commentary states that “the adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” Id. (emphasis added). Our circuit has adopted this “clearly improbable” standard. See, e.g., United States v. Ruiz, 905 F.2d 499, 507 (1st Cir.1990); United States v. Mocciola, 891 F.2d 13, 17 (1st Cir.1989). The following undisputed facts were before the district court. Found at defendant’s residence were six operable firearms. Three of these firearms were loaded, three were handguns, and one was within defendant’s arm reach. Also found at defendant’s residence were 64.34 grams of cocaine, two surveillance cameras, a closed circuit television system to monitor the driveway and the front of the residence, $1000.00 in cash, notebooks denoting drug transactions, written materials indi- eating a trip or trips to Florida (the location of defendant’s drug source), a set of gram scales, and other drug paraphernalia. With these facts as a backdrop, the district court was permitted to make the reasonable inference that defendant used one or more" }, { "docid": "6755501", "title": "", "text": "was merely part of his uniform, and, therefore, Guideline 2Dl.l(b)(l) did not justify an increase in the offense level. The court rejected this argument. 2. The Firearm Enhancement. Ruiz challenges the district court’s elevation of the BOL pursuant to U.S.S.G. § 2Dl.l(b)(l) because a firearm was possessed during commission of the drug offense. The Sentencing Commission has advised judges to make the adjustment if a firearm or other dangerous weapon was present during the crime’s commission “unless it is clearly improbable that the weapon was connected with the offense. ” Id. (commentary). We, and other courts, have accepted that advice according to its tenor. See, e.g., [United States v. Mocciola, 891 F.2d 13, 17 (1st Cir.1989) ]; United States v. Otero, 868 F.2d 1412, 1414 (5th Cir.1989). In this case, Ruiz argues that the connection between the weapon and the offense was far too tenuous since he lawfully carried the firearm incidental to his vocation as a police officer rather than as a means of facilitating his avocation as a criminal. We cannot say the district court’s finding in this respect was clearly wrong. Mere possession of a firearm can trigger the two level increase; there is no requirement that the gun actually be used in perpetrating the drug crime, or that such use be intended. See, e.g., United States v. Green, 889 F.2d 187, 189 (8th Cir.1989) (increase upheld when unloaded handgun discovered in apartment where defendant conducted drug transactions); United States v. Burke, 888 F.2d 862, 869 (D.C.Cir.1989) (so long as possession proven, no requirement to prove that defendant would have used weapon to advance commission of drug offense); [United States v. Paulino, 887 F.2d 358, 360 (1st Cir.1989) ] (same; pistol was in bureau drawer in room where cocaine concealed); United States v. Restrepo, 884 F.2d 1294, 1295-1296 (9th Cir.1989) (same; automatic pistol hidden in mattress in stash house); United States v. Holland, 884 F.2d 354 (8th Cir.) (same; pistol found in briefcase along with drug paraphernalia), cert. denied, — U.S. —, 110 S.Ct. 552, 107 L.Ed.2d 549 (1989); United States v. Hewin, 877 F.2d 3, 5" }, { "docid": "8397091", "title": "", "text": "of the firearms to protect his drug operation. Cf. United States v. Rodriguez, 897 F.2d 1324, 1326 (5th Cir.1990) (“[T]he court is permitted to make inferences from the facts, and these inferences are factfindings reviewed under a clearly erroneous standard_”). At the very least, the court committed no “clear error” in finding that it was not “clearly improbable” that the firearms were connected to the offense of conspiracy to distribute cocaine. See, e.g., United States v. Paulino, 887 F.2d 358, 360 (1st Cir.1989) (upholding enhancement where police found loaded firearm in bureau drawer of bedroom where cocaine was stored, as well as $44,-690 in cash, personal papers belonging to defendant, and a drug ledger); United States v. Wayne, 903 F.2d 1188 (8th Cir.1990) (upholding enhancement where at defendant’s home “the police seized a loaded .357 Smith & Wesson handgun, a 9 millimeter Luger handgun, and a 12-gauge shotgun” and where “[tjhere was substantial evidence that [defendant] conducted his narcotic activities from his home”); United States v. Green, 889 F.2d 187, 189 (8th Cir.1989) (Defendant’s “undenied possession of a firearm and ammunition in the same place where she conducted drug transactions and the additional hazard [that] the presence of the firearm created in her drug operation satisfy us that connection of the gun to the offense is not clearly improbable.”); see generally United States v. Ruiz, 905 F.2d 499, 507 (1st Cir.1990) (citing cases). Defendant next argues that the district court erred in enhancing his sentence pursuant to section 3Bl.l(a) of the Guidelines. That section provides for an increase of four levels if (1) defendant acted as “an organizer or leader of a criminal activity” and (2) the criminal activity “involved five or more participants or was otherwise extensive_” Defendant’s argument, like the first, is without merit. In finding that defendant was an organizer or leader, the district court found (1) that defendant “was the principal organizing and precipitating force of the [criminal] activities that culminated in the distribution of cocaine here in the State of Maine, and (2) that he had enlisted and had the benefit of four other people" }, { "docid": "23492988", "title": "", "text": "apartment with large quantities of narcotics in plain view could compromise the security of the operation. Additionally, the fact that no money was found on Vasquez’s person is wholly inconsistent with his defense that he was a mere purchaser. Under these circumstances Vasquez’s challenge to the sufficiency of the evidence must be rejected. III. Vasquez’s Challenges To His Sentence Vasquez also raises two challenges to the district court’s application of the Sentencing Guidelines in calculating his sentence. Vasquez first argues that the court erred in enhancing his sentence two points pursuant to U.S.S.G. § 2D.1.1(b) for possession of a dangerous weapon because he lacked actual knowledge of the weapons’ existence. Sentencing Guideline § 2Dl.l(b)(l) permits a two-level increase in the base offense level “[i]f a dangerous weapon (including a firearm) was possessed” during commission of the offense. Application Note 3 to this section instructs that “[t]he enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons. The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” U.S.S.G. § 201.1(b)(1). Here the district court found by a preponderance of the evidence that the presence of a veritable arsenal of weapons in safes in an apartment where vast quantities of contraband were found constituted “possession” under the Sentencing Guidelines regardless of whether the safes had been open or closed. This finding is not clearly erroneous. See, e.g., United States v. Pellegrini, 929 F.2d 55, 56 (2d Cir.1991) (an enhancement pursuant to U.S.S.G. § 2Dl.l(b)(l) is warranted when weapons are present in the same apartment where narcotics are stored); United States v. Paulino, 887 F.2d 358, 360 (1st Cir.1989) (finding possession under U.S.S.G. § 2Dl.l(b)(l) where firearms were located in a closet of an apartment rented by the defendant in the same building as another apartment, also rented by the defendant, where drugs were uncovered); United States v. Gillock, 886 F.2d 220, 223 (9th Cir.1989) (affirming two level upward adjustment for possession of a weapon pursuant to U.S.S.G. § 2Dl.l(b)(l) where firearm and drugs were" }, { "docid": "328726", "title": "", "text": "without merit. Section 2D1.1(b)(1) of the guidelines provides: “If a dangerous weapon (including a firearm) was possessed during the commission of the offense, increase by 2 levels.” As this court has previously held, section 2D1.1(b)(1) does not require that the defendant actually use the firearm, United States v. Rush, 890 F.2d 45, 52 (7th Cir.1989), or that the government show a connection between the weapon and the offense. United States v. Durrive, 902 F.2d 1221, 1232 (7th Cir.1990). All that must be shown is that the weapon was possessed during the offense. Id. Garcia does not deny he possessed the handgun; rather, relying on Application Note 3 to U.S.S.G. § 2D1.1, he argues that it was clearly improbable that the firearm was connected to his drug offense. In its pertinent part, Application Note 3 provides that: The enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons. The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense. For example, the enhancement would not be applied if the defendant, arrested at his residence, had an unloaded hunting rifle in the closet. Courts addressing the proper application of this Note have generally limited its use to cases involving facts nearly identical to those of the hypothetical. For example, in a case closely analogous to Garcia’s, United States v. Franklin, 896 F.2d 1063, 1065-66 (7th Cir.1990), we affirmed a section 2D1.1(b)(1) two-level enhancement when three loaded handguns were found in the same house as cocaine and various equipment used for its manufacture and distribution. In Durrive, this court also upheld a § 2D1.1(b)(1) sentence enhancement when the police discovered a .357 revolver in a closet of the defendant’s apartment which had been used as the drug conspiracy’s base of operations, even though no drugs were found in the apartment. Durrive, at 1230-32. Similarly, in United States v. Green, 889 F.2d 187 (8th Cir.1989), the court held that the Application Note 3 exception did not apply because the firearm was not a hunting weapon and was" }, { "docid": "22575852", "title": "", "text": "erroneous” and “give due deference to the district court’s application of the guidelines to the facts.” 18 U.S.C. § 3742(e); see United States v. Mocciola, 891 F.2d 13, 17 (1st Cir.1989); United States v. Paulino, 887 F.2d 358, 359 (1st Cir.1989). 2. The Firearm Enhancement. Ruiz challenges the district court’s elevation of the BOL pursuant to U.S.S.G. § 2D1.1(b)(1) because a firearm was possessed during commission of the drug offense. The Sentencing Commission has advised judges to make the adjustment if a firearm or other dangerous weapon was present during the crime’s commission “unless it is clearly improbable that the weapon was connected with the offense.” Id. (commentary). We, and other courts, have accepted that advice according to its tenor. See, e.g., Mocciola, 891 F.2d at 17; Paulino, 887 F.2d at 360; United States v. Otero, 868 F.2d 1412, 1414 (5th Cir.1989). In this case, Ruiz argues that the connection between weapon and offense was far too tenuous since he lawfully carried the firearm incidental to his vocation as a police officer rather than as a means of facilitating his avocation as a criminal. We cannot say the district court’s finding in this respect was clearly wrong. Mere possession of a firearm can trigger the two level increase; there is no requirement that the gun actually be used in perpetrating the drug crime, or that such use be intended. See, e.g., United States v. Green, 889 F.2d 187, 189 (8th Cir.1989) (increase upheld when unloaded handgun discovered in apartment where defendant conducted drug transactions); United States v. Burke, 888 F.2d 862, 869 (D.C.Cir.1989) (so long as possession proven, no requirement to prove that defendant would have used weapon to advance commission of drug offense); Paulino, 887 F.2d at 360 (same; pistol was in bureau drawer in room where cocaine concealed); United States v. Res-tregó, 884 F.2d 1294, 1295-96 (9th Cir.1989) (same; automatic pistol hidden in mattress in stash house); United States v. Holland, 884 F.2d 354 (8th Cir.) (same; pistol found in briefcase along with drug paraphernalia), cert. denied, — U.S.-, 110 S.Ct. 552, 107 L.Ed.2d 549 (1989); United States" }, { "docid": "22271402", "title": "", "text": "sentences imposed under the Sentencing Guidelines is governed by 18 U.S.C. § 3742, which provides in relevant part: (e) Consideration. — Upon review of the record, the court of appeals shall determine whether the sentence— (1) was imposed in violation of law; (2) was imposed as a result of an incorrect application of the sentencing guidelines; The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and shall give due deference to the district court’s application of the guidelines to the facts. As it pertains to sentencing under the Guidelines, a district court’s finding that a defendant possessed a firearm during a drug crime is a factual finding subject to the clearly erroneous standard of review. See United States v. Moreno, 899 F.2d 465, 470 (6th Cir.1990); United States v. Otero, 868 F.2d 1412, 1415 (5th Cir.1989); United States v. Gillock, 886 F.2d 220, 223 (9th Cir.1989); see also United States v. Mocciola, 891 F.2d 13, 16-17 (1st Cir.1989); but see United States v. Rush, 890 F.2d 45, 52 (7th Cir.1989). On review of motions to suppress evidence, findings of fact will be upheld unless clearly erroneous; however, a district court’s conclusions of law are reviewed de novo. United States v. Sangineto-Miranda, 859 F.2d 1501, 1512 (6th Cir.1988). B. 1. Duncan contests the enhancement of his sentence as an abuse of discretion. His sentence was enhanced by two levels under § 2D 1.1(b) of the Sentencing Guidelines which provides that “[i]f a firearm or other dangerous weapon was possessed during commission of the [drug] offense, increase [the base offense level] by 2 levels.” The commentary to that section states: The enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons. The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.... The adjustment is to be applied even if several counts are involved and the" }, { "docid": "22912690", "title": "", "text": "that the district court erred in not grouping the methamphetamine and firearms counts as “related conduct offenses” pursuant to § 3D1.1. Assuming arguendo that these claims are cognizable on collateral review, we find both to be without merit. Segler’s double jeopardy argument “ ‘mis-perceives the distinction between a sentence and a sentence enhancement.’ ” United States v. Ainsworth, 932 F.2d 358, 363 (5th Cir.) (quoting United States v. Mocciola, 891 F.2d 13, 17 (1st Cir.1989)), cert. denied, — U.S. -, 112 S.Ct. 346, 116 L.Ed.2d 286 (1991). The danger of violence increases when firearms are present during drug-related crimes. Sentence enhancement for firearms possession seeks to discourage drug traffickers from possessing firearms. U.S.S.G. § 2D1.1, comment, (n. 3). The record reflects that loaded firearms were found at Segler’s residence, where the drug laboratory was located. Because Segler does not claim that the firearms at issue were not connected to the offense, the district court did not err by increasing Segler’s offense level after finding that he possessed the firearms during the commission of a drug offense. U.S.S.G. § 2Dl.l(b)(l); see also United States v. Hewin, 877 F.2d 3, 5 (5th Cir.1989) (noting that the offense level should be increased ‘unless it is clearly improbable that the weapon was connected with the offense’) (citation omitted). Accordingly, there was no violation of Segler’s double jeopardy rights. Ainsworth, 932 F.2d at 363. Likewise, there is no merit to Segler’s claim that the district court failed to “group” the two counts for sentencing under § 3D1.1. Segler misunderstands the calculation of his sentence. The district court did group the counts, pursuant to § 3D1.2(c). However, because the resulting guideline range—360 months to life—was greater than the statutorily authorized maximum sentence for the methamphetamine count—240 months—the statutory maximum penalty controlled. See U.S.S.G. § 5G1.1. Consequently, § 5G1.2 required the district court to impose consecutive sentences for the methamphetamine count and the firearm count. As Segler recognized, the district court imposed the statutory maximum penalty of 60 months for the unlawful possession of a firearm in an attempt to impose a sentence within the guideline range." }, { "docid": "22575853", "title": "", "text": "a means of facilitating his avocation as a criminal. We cannot say the district court’s finding in this respect was clearly wrong. Mere possession of a firearm can trigger the two level increase; there is no requirement that the gun actually be used in perpetrating the drug crime, or that such use be intended. See, e.g., United States v. Green, 889 F.2d 187, 189 (8th Cir.1989) (increase upheld when unloaded handgun discovered in apartment where defendant conducted drug transactions); United States v. Burke, 888 F.2d 862, 869 (D.C.Cir.1989) (so long as possession proven, no requirement to prove that defendant would have used weapon to advance commission of drug offense); Paulino, 887 F.2d at 360 (same; pistol was in bureau drawer in room where cocaine concealed); United States v. Res-tregó, 884 F.2d 1294, 1295-96 (9th Cir.1989) (same; automatic pistol hidden in mattress in stash house); United States v. Holland, 884 F.2d 354 (8th Cir.) (same; pistol found in briefcase along with drug paraphernalia), cert. denied, — U.S.-, 110 S.Ct. 552, 107 L.Ed.2d 549 (1989); United States v. Hewin, 877 F.2d 3, 5 (5th Cir.1989) (same; pistol in back seat of car carrying marijuana in trunk). Here, the weapon was closely linked to the very powers and office which appellant used to implement his felonious activities. The knowledge that Ruiz carried a gun quite probably instilled confidence in those who relied upon him for protection in exchange for drugs, and fear in those who dealt with his suppliers. The fact that Ruiz was compelled to carry the gun by virtue of his employment was, of course, to be considered — but that fact alone did not make it “clearly improbable” that the weapon was connected with the drug offenses. Cf., e.g., Otero, 868 F.2d at 1415 (enhancement for possession of firearm “not dependent on whether the weapon is carried illegally”). After all, where there is more than one plausible view of the circumstances, the sentencing court’s choice among supportable alternatives cannot be clearly erroneous. See United States v. Jimenez-Otero, 898 F.2d 813, 814 (1st Cir.1990); see also Mocciola, 891 F.2d at 17" }, { "docid": "6755500", "title": "", "text": "upheld the same sort of multiple enhancement of the sentence of a Lawrence, Massachusetts police officer who, in exchange for small quantities of cocaine, allowed several individuals to carry on their drug-trafficking activities without police interference. The Ruiz defendant further provided the drug traffickers with confidential police information regarding likely informants and impending raids. On other occasions, the defendant provided the traffickers with police escort when a particularly large drug delivery was involved. Since Ruiz was a police officer, like Mux-low in the instant case, his uniform mandated that he wear a handgun, so he necessarily carried the handgun while he committed the offenses for which he was convicted. As in the instant case, Ruiz’ base offense level was raised 2 levels for possessing the handgun, and another 2 points for his role as a police officer. Id., at 507. On appeal, Ruiz challenged the elevation of his base offense level, pursuant to Guideline 2D 1.1(b)(1), as a result of his possession of the handgun. As in the instant case, Ruiz argued that the handgun was merely part of his uniform, and, therefore, Guideline 2Dl.l(b)(l) did not justify an increase in the offense level. The court rejected this argument. 2. The Firearm Enhancement. Ruiz challenges the district court’s elevation of the BOL pursuant to U.S.S.G. § 2Dl.l(b)(l) because a firearm was possessed during commission of the drug offense. The Sentencing Commission has advised judges to make the adjustment if a firearm or other dangerous weapon was present during the crime’s commission “unless it is clearly improbable that the weapon was connected with the offense. ” Id. (commentary). We, and other courts, have accepted that advice according to its tenor. See, e.g., [United States v. Mocciola, 891 F.2d 13, 17 (1st Cir.1989) ]; United States v. Otero, 868 F.2d 1412, 1414 (5th Cir.1989). In this case, Ruiz argues that the connection between the weapon and the offense was far too tenuous since he lawfully carried the firearm incidental to his vocation as a police officer rather than as a means of facilitating his avocation as a criminal. We cannot say the" }, { "docid": "6755502", "title": "", "text": "district court’s finding in this respect was clearly wrong. Mere possession of a firearm can trigger the two level increase; there is no requirement that the gun actually be used in perpetrating the drug crime, or that such use be intended. See, e.g., United States v. Green, 889 F.2d 187, 189 (8th Cir.1989) (increase upheld when unloaded handgun discovered in apartment where defendant conducted drug transactions); United States v. Burke, 888 F.2d 862, 869 (D.C.Cir.1989) (so long as possession proven, no requirement to prove that defendant would have used weapon to advance commission of drug offense); [United States v. Paulino, 887 F.2d 358, 360 (1st Cir.1989) ] (same; pistol was in bureau drawer in room where cocaine concealed); United States v. Restrepo, 884 F.2d 1294, 1295-1296 (9th Cir.1989) (same; automatic pistol hidden in mattress in stash house); United States v. Holland, 884 F.2d 354 (8th Cir.) (same; pistol found in briefcase along with drug paraphernalia), cert. denied, — U.S. —, 110 S.Ct. 552, 107 L.Ed.2d 549 (1989); United States v. Hewin, 877 F.2d 3, 5 (5th Cir.1989) (same; pistol in back seat of car carrying marijuana in trunk). Here, the weapon was closely linked to the very powers and office which appellant used to implement his felonious activities. The knowledge that Ruiz carried a gun quite probably instilled confidence in those who relied upon him for protection in exchange for drugs, and fear in those who dealt with his suppliers. The fact that Ruiz was compelled to carry the gun by virtue of his employment was, of course, to be considered — but that fact alone does not make it “clearly improbable” that the weapon was connected with the drug offenses. Id., at 507-508 (emphasis added). As the Court understands the parties’ argument here, they contend both: 1) that the fact that Muxlow was required to carry her weapon as part of her uniform as a police officer renders it “clearly improbable” that the handgun was connected with the drug distribution offense to which she pleaded guilty; and 2) even if Muxlow’s possession of the weapon were connected to the" }, { "docid": "22575851", "title": "", "text": "firearm during commission of the offenses, the BOL should be increased by two levels. See U.S.S.G. § 2Dl.l(b)(l). c) Because Ruiz abused the trust placed in him as a police officer and used that position to advance his criminal endeavors, the BOL should be increased by two more levels. See U.S.S.G. § 3B1.3. d) Because Ruiz testified falsely at trial, there should be a final two level increase for obstruction of justice. See U.S.S.G. § 3C1.1. Ruiz’s total offense level was, therefore, set at 38. Noting that Ruiz had no prior criminal history, the district court tabulated a guideline range of 235-293 months and sentenced Ruiz to 240 months. See U.S.S.G. Ch. 5, Part A; see generally United States v. Diaz-Villafane, 874 F.2d 43, 47-48 (1st Cir.) (explaining methodology for calculating guideline range), cert. denied, — U.S. -, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989). Defendant contests two steps in the computation pavane. We approach his arguments mindful that we must both “accept the findings of fact of the district court unless they are clearly erroneous” and “give due deference to the district court’s application of the guidelines to the facts.” 18 U.S.C. § 3742(e); see United States v. Mocciola, 891 F.2d 13, 17 (1st Cir.1989); United States v. Paulino, 887 F.2d 358, 359 (1st Cir.1989). 2. The Firearm Enhancement. Ruiz challenges the district court’s elevation of the BOL pursuant to U.S.S.G. § 2D1.1(b)(1) because a firearm was possessed during commission of the drug offense. The Sentencing Commission has advised judges to make the adjustment if a firearm or other dangerous weapon was present during the crime’s commission “unless it is clearly improbable that the weapon was connected with the offense.” Id. (commentary). We, and other courts, have accepted that advice according to its tenor. See, e.g., Mocciola, 891 F.2d at 17; Paulino, 887 F.2d at 360; United States v. Otero, 868 F.2d 1412, 1414 (5th Cir.1989). In this case, Ruiz argues that the connection between weapon and offense was far too tenuous since he lawfully carried the firearm incidental to his vocation as a police officer rather than as" }, { "docid": "5263728", "title": "", "text": "905 F.2d 499, 507 (1st Cir.1990); United States v. Mocciola, 891 F.2d 13, 16 (1st Cir.1989). In the case at hand, the district court’s factfinding survives clear-error review. This conclusion is reached more easily because of the Sentencing Commission’s specific instruction that section 2D1.1(b)(1) “should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” U.S.S.G. § 2Dl.l(b)(l), comment. A sentencing court must, of course, honor this type of instruction. See, e.g., United States v. Fiore, 983 F.2d 1, 2 (1st Cir.1992) (explaining that the Sentencing Commission’s interpretation of a guideline should be followed unless it is “arbitrary, unreasonable, inconsistent with the guideline’s text, or contrary to law”), cert. denied, — U.S. -, 113 S.Ct. 1830, 123 L.Ed.2d 458 (1993). Here, the record supports a finding that appellant served as a bodyguard while one of his coconspirators negotiated the terms of a proposed narcotics transaction with a confidential informant. It likewise supports a finding that appellant carried a pistol during the encounter. Under these circumstances, we must uphold the district court’s conclusion that, on the date of appellant’s arrest, he possessed a firearm in the course of an aborted drug transaction. Appellant tries to stave off the near-irresistible force of these findings in two ways. First, he suggests that, to warrant an adjustment under U.S.S.G. § 2Dl.l(b)(l), the evidence must establish the same panoply of elements that are needed to prove the statutory “carrying and use” of a weapon in furtherance of a drug crime, see 18 U.S.C. § 924(c)(1). The suggestion is fanciful, for the guideline can be triggered with considerably greater ease. The point is readily susceptible to illustration. For one thing, while mere possession of a firearm during a drug-trafficking episode does not satisfy the elements of the statute, see United States v. Castro-Lara, 970 F.2d 976, 983 (1st Cir.1992), cert. denied, - U.S. -, 113 S.Ct. 2935, 124 L.Ed.2d 684 (1993), the reverse is often true under the guideline, see, e.g., Ruiz, 905 F.2d at 507 (“Mere possession of a firearm can trigger the two level" }, { "docid": "8806744", "title": "", "text": "a firearm during the commission of the offense pursuant to § 2D1.1(b)(1) of the Sentencing Guidelines. The notes to § 2D1.1(b)(1) indicate that “[t]he enhancement for weapon possession ... should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” U.S.S.G. § 2Dl.l(b)(l), n. 3. The district court found that the pistol located in Lewis’ apartment could not be attributed to Turpin. The court credited the testimony of Anthony Whitehead, who stated that he saw a Smith & Wesson 9 millimeter pistol in the Beretta between Turpin and Williams. We give “due regard” to the district court’s determination of Whitehead’s credibility. 18 U.S.C. § 3742(e) (1988). Mere presence of the gun is not sufficient to justify sentence enhancement. The government must prove a connection between the gun and the criminal activity. United States v. Khang, 904 F.2d 1219, 1225 (8th Cir.1990). This does not require a showing that Turpin “ever used or even touched the [gun].” United States v. Luster, 896 F.2d 1122, 1129 (8th Cir.1990). Constructive possession will suffice to justify an upward adjustment for possession of a firearm during the commission of an offense. Id. Moreover, the single gun may justify an enhancement of the sentences of both Turpin and Williams, since possession of a gun by either would suffice to justify an upward adjustment of the other’s offense level if it was reasonably foreseeable that one of them would possess a gun in furtherance of the jointly undertaken criminal activity. United States v. Barragan, 915 F.2d 1174, 1179 (8th Cir.1990). We previously have upheld upward adjustments when guns have been present in automobiles or houses connected with drug activity. E.g., United States v. Figueroa, 900 F.2d 1211, 1218 (8th Cir.) (gun present under seat in car defendant was driving), cert. denied, 110 S.Ct. 3228 (1990); Luster, supra, 896 F.2d at 1128-29 (unloaded rifle in living room during drug transaction); United States v. Green, 889 F.2d 187, 189 (8th Cir.1989) (gun present in defendant’s apartment in which drug sales were transacted); United States v. Koonce, 884 F.2d 349," }, { "docid": "8397090", "title": "", "text": "the Commentary states that “the adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” Id. (emphasis added). Our circuit has adopted this “clearly improbable” standard. See, e.g., United States v. Ruiz, 905 F.2d 499, 507 (1st Cir.1990); United States v. Mocciola, 891 F.2d 13, 17 (1st Cir.1989). The following undisputed facts were before the district court. Found at defendant’s residence were six operable firearms. Three of these firearms were loaded, three were handguns, and one was within defendant’s arm reach. Also found at defendant’s residence were 64.34 grams of cocaine, two surveillance cameras, a closed circuit television system to monitor the driveway and the front of the residence, $1000.00 in cash, notebooks denoting drug transactions, written materials indi- eating a trip or trips to Florida (the location of defendant’s drug source), a set of gram scales, and other drug paraphernalia. With these facts as a backdrop, the district court was permitted to make the reasonable inference that defendant used one or more of the firearms to protect his drug operation. Cf. United States v. Rodriguez, 897 F.2d 1324, 1326 (5th Cir.1990) (“[T]he court is permitted to make inferences from the facts, and these inferences are factfindings reviewed under a clearly erroneous standard_”). At the very least, the court committed no “clear error” in finding that it was not “clearly improbable” that the firearms were connected to the offense of conspiracy to distribute cocaine. See, e.g., United States v. Paulino, 887 F.2d 358, 360 (1st Cir.1989) (upholding enhancement where police found loaded firearm in bureau drawer of bedroom where cocaine was stored, as well as $44,-690 in cash, personal papers belonging to defendant, and a drug ledger); United States v. Wayne, 903 F.2d 1188 (8th Cir.1990) (upholding enhancement where at defendant’s home “the police seized a loaded .357 Smith & Wesson handgun, a 9 millimeter Luger handgun, and a 12-gauge shotgun” and where “[tjhere was substantial evidence that [defendant] conducted his narcotic activities from his home”); United States v. Green, 889 F.2d 187, 189 (8th Cir.1989) (Defendant’s “undenied" }, { "docid": "16970221", "title": "", "text": "the burden of establishing that she deserves a downward adjustment. United States v. Ortiz, 966 F.2d 707, 717 (1st Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1005, 122 L.Ed.2d 154 (1993). Since role-in-the-offense determinations are fact-bound, we review such findings only for clear error. See, e.g., United States v. Sostre, 967 F.2d 728, 732 (1st Cir.1992); United States v. Brum, 948 F.2d 817, 820 (1st Cir.1991). In this case, Jackson was convicted of conspiring to possess, and possession of, cocaine with intent to distribute it. Familia testified that neither defendant was involved with drugs, and that the drugs might have belonged to his brother (he was not certain to whom they belonged). Neither the jury nor the sentencing judge credited Familia’s contentions, however, and Jackson offered nothing else to meet her burden of proving that she acted in a lesser capacity. We therefore cannot conclude that the judge clearly erred in denying the downward adjustment. See United States v. Ruiz, 905 F.2d 499, 508 (1st Cir.1990) (“where there is more than one plausible view of the circumstances, the sentencing court’s choice among supportable alternatives cannot be clearly erroneous”). Weapon Possession Adjustment. The sentencing guidelines require that the offense level be raised two points if a firearm was possessed during a drug trafficking offense. U.S.S.G. § 2D1.1(b)(1). “We have held that, if a weapon was present, the adjustment should be made unless it is clearly improbable that the weapon and the offense were connected.” United States v. McDowell, 918 F.2d 1004, 1011 (1st Cir.1990) (citing Ruiz, 905 F.2d at 507; United States v. Mocciola, 891 F.2d 13, 17 (1st Cir.1989)). Jackson argues that her offense level should not have been raised for presence of a weapon. Jackson asserts that there was no evidence showing that she knew the gun was under the mattress or that she had ever used the firearm. On the contrary, Familia testified that the gun was his and that she knew nothing about the weapon. Moreover, she was not charged for possession of a weapon and Familia was acquitted of possession during a drug trafficking crime." }, { "docid": "22271403", "title": "", "text": "see also United States v. Mocciola, 891 F.2d 13, 16-17 (1st Cir.1989); but see United States v. Rush, 890 F.2d 45, 52 (7th Cir.1989). On review of motions to suppress evidence, findings of fact will be upheld unless clearly erroneous; however, a district court’s conclusions of law are reviewed de novo. United States v. Sangineto-Miranda, 859 F.2d 1501, 1512 (6th Cir.1988). B. 1. Duncan contests the enhancement of his sentence as an abuse of discretion. His sentence was enhanced by two levels under § 2D 1.1(b) of the Sentencing Guidelines which provides that “[i]f a firearm or other dangerous weapon was possessed during commission of the [drug] offense, increase [the base offense level] by 2 levels.” The commentary to that section states: The enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons. The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.... The adjustment is to be applied even if several counts are involved and the weapon was present in any of them. Guidelines § 2Dl.l(b) commentary at n. 3. We have held that the “possession of a firearm during the commission of the offense establishes a presumption that the possession is connected to the offense.” Moreno, 899 F.2d at 470. The district court found that the defendant “possessed a loaded .357 magnum caliber revolver on his front seat next to him during a drug transaction, which occurred in the front seat of his ear on May 11, 1988.” J.A. 38. The court further found that during a later transaction the same day, the gun was present in the defendant’s automobile parked on the street outside Johnson’s home while a drug transaction was being completed inside Johnson’s home. J.A. 39. The district court also found that the nature <?f the weapon and the presence in Mr. Duncan’s pocket of two rounds of ammunition for the weapon “clearly belie[d] Mr. Duncan’s assertion that the gun was just not his and not really known to him to be present_” The district court’s conclusion" }, { "docid": "5263729", "title": "", "text": "we must uphold the district court’s conclusion that, on the date of appellant’s arrest, he possessed a firearm in the course of an aborted drug transaction. Appellant tries to stave off the near-irresistible force of these findings in two ways. First, he suggests that, to warrant an adjustment under U.S.S.G. § 2Dl.l(b)(l), the evidence must establish the same panoply of elements that are needed to prove the statutory “carrying and use” of a weapon in furtherance of a drug crime, see 18 U.S.C. § 924(c)(1). The suggestion is fanciful, for the guideline can be triggered with considerably greater ease. The point is readily susceptible to illustration. For one thing, while mere possession of a firearm during a drug-trafficking episode does not satisfy the elements of the statute, see United States v. Castro-Lara, 970 F.2d 976, 983 (1st Cir.1992), cert. denied, - U.S. -, 113 S.Ct. 2935, 124 L.Ed.2d 684 (1993), the reverse is often true under the guideline, see, e.g., Ruiz, 905 F.2d at 507 (“Mere possession of a firearm can trigger the two level increase; there is no requirement that the gun actually be used in perpetrating the drug crime, or that such use be intended,”); United States v. Green, 889 F.2d 187, 189 (8th Cir.1989) (similar); United States v. Paulino, 887 F.2d 358, 360 (1st Cir.1989) (similar). For another thing, the “clearly improbable” language quoted above makes a huge difference. Under the statute, the government’s burden of persuasion never varies. Under the guideline, however, once the underlying crime and the presence of a firearm have been established, the burden then shifts to the defendant to show, or at least produce some evidence of, “the existence of special circumstances that would render it ‘clearly improbable’ that the weapon’s presence has a connection to the narcotics trafficking.” United States v. Corcimiglia, 967 F.2d 724, 728 (1st Cir.1992) (quoting Commentary). This distinction is of para mount importance here, as the record justifies a finding of possession, and appellant has neither produced nor pointed to the existence of any evidence indicating the improbability of a facilitative nexus between the gun and the" }, { "docid": "16062108", "title": "", "text": "534 F.2d 667, 674 (6th Cir.1976). VI Dillard contends that the district court erred in adding two levels, for purposes of sentencing, for the possession of a firearm. We review a district court’s factual findings in connection with sentencing under a “clearly erroneous” standard, United States v. Luster, 889 F.2d 1523, 1525 (6th Cir.1989), giving “due deference” to the sentencing court’s application of the guidelines to the facts. 18 U.S.C. § 3742(e) (1988). The application of the guidelines to an undisputed set of facts is, however, reviewed de novo. See, e.g., United States v. Wilson, 920 F.2d 1290, 1294 (6th Cir.1990). The sentencing guidelines provide that “[i]f a dangerous weapon (including a firearm) was possessed, increase by 2 levels.” United States Sentencing Commission, Guidelines Manual § 2D1.1(b)(1) (Nov.1991) [hereinafter U.S.S.G.]. The commission explains that “[t]he adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense. For example, the enhancement would not be applied if the defendant, arrested at his residence, had an unloaded hunting rifle in the closet.” Id. § 2D1.1, comment, (n. 3). Dillard argues that his case provides another example of when “it is clearly improbable that the weapon was connected with the offense.” He points out that he carried his firearm as part of his status as a sheriff. This does not mean, however, that the weapon could not be connected with the offense. The First Circuit has explained the connection as follows: Here, the weapon was closely linked to the very powers and office which appellant used to implement his felonious activities. The knowledge that Ruiz carried a gun quite probably instilled confidence in those who relied upon him for protection in exchange for drugs, and fear in those who dealt with his suppliers. The fact that Ruiz was compelled to carry the gun by virtue of his employment was, of course, to be considered— but that fact alone did not make it “clearly improbable” that the weapon was connected with the drug offenses. United States v. Ruiz, 905 F.2d 499, 508 (1st Cir.1990)." }, { "docid": "7463210", "title": "", "text": "next contention is that the district court erred in adding two points to his base offense level under Federal Sentencing Guideline subsection 2D1.1(b)(1) for possessing “a firearm or other dangerous weapon ... during commission of the offense.” The trial judge found that the .22 caliber rifle in the Lusters’ living room was in the defendant’s possession during the fifth and sixth transactions. We will not reverse the district court’s finding that Mr. Luster possessed a firearm for purposes of 2D1.1(b)(1) unless it is clearly erroneous. See United States v. Green, 889 F.2d 187, 188 (8th Cir.1989); 18 U.S.C. § 3742(e) (Supp. V 1987). The United States Sentencing Commission instructs that if a weapon was present during the charged offense, the 2D1.1(b)(1) adjustment applies unless “it is clearly improbable that the weapon was connected with the offense.” Commentary Note 3, Guidelines § 2D1.1. Mr. Luster first argues that the 2D 1.1(b)(1) adjustment was unwarranted because there was no evidence that the rifle was loaded. In neither subsection 2Dl.l(b)(l) nor the commentary to that subsection, however, is there any indication that the firearm must be loaded for sentencing adjustment to occur. The Commission defines the term “firearm” as “any weapon which is designed to or may readily be converted to expel any projectile by the action of an explosive.” Commentary Note 1(e), Guidelines § 1B1.1. One court has recently interpreted this definition to encompass both operable and inoperable firearms. See United States v. Burke, 888 F.2d 862, 869 (D.C.Cir.1989); cf. United States v. York, 830 F.2d 885, 891 (8th Cir.1987) (holding that 18 U.S.C. § 921(a)(3), which defines “firearm” as a “weapon ... designed to or may readily be converted to expel a projectile by the action of an explosion,” does not require the weapon to be operable to be a firearm), cert. denied, 484 U.S. 1074, 108 S.Ct. 1047, 98 L.Ed.2d 1010 (1988). We agree with the Burke court that the inoperability of the firearm should not bar a 2Dl.l(b) adjustment, provided that the firearm at the time of the offense did not clearly appear inoperable. In the present case, although" } ]

[ { "docid": "22746602", "title": "", "text": "worse. In Freedman v. Maryland, ante, p. 51, we struck down a motion picture censorship statute solely because the regulatory scheme did not sufficiently assure exhibitors a prompt judicial resolution of First Amendment claims. The interest in immediate resolution of such claims is surely no less where criminal prosecutions are threatened under statutes allegedly overbroad and seriously inhibiting the exercise of protected freedoms. Not only does the complaint allege far more than an “injury other than that incidental to every criminal proceeding brought lawfully and in good faith,” but appellants allege threats to enforce statutory provisions other than those under which indictments have been brought. Since there is no immediate prospect of a final state adjudication as to those other sections — if, indeed, there is any certainty that prosecution of the pending indictments will resolve all constitutional issues presented — a series of state criminal prosecutions will not provide satisfactory resolution of constitutional issues. It follows that the District Court erred in holding that the complaint fails to allege sufficient irreparable injury to justify equitable relief. The District Court also erred in holding that it should abstain pending authoritative interpretation of the statutes in the state courts, which might hold that they did not apply to SCEF, or that they were unconstitutional as applied to SCEF. We hold the abstention doctrine is inappropriate for cases such as the present one where, unlike Douglas v. City of Jeannette, statutes are justifi ably attacked on their face as abridging free expression, or as applied for the purpose of discouraging protected activities. First, appellants have attacked the good faith of the appellees in enforcing the statutes, claiming that they have invoked, and threaten to continue to invoke, criminal process without any hope of ultimate success, but only to discourage appellants’ civil rights activities. If these allegations state a claim under the Civil Rights Act, 42 U. S. C. § 1983, as we believe they do, see Beauregard v. Wingard, 230 F. Supp. 167 (D. C. S. D. Calif. 1964); Bargainer v. Michal, 233 F. Supp. 270 (D. C. N. D. Ohio 1964)," } ]

[ { "docid": "22075926", "title": "", "text": "caused plaintiff to be denied a speedy trial”, notwithstanding five letters from plaintiff over a period from approximately May, 1951 to April, 1953, all requesting speedy trial. . We said in Urbano: “It appears that none of the defendants has been served with the complaint. There is therefore no party defendant of record in the proceeding. As a result, when the case was submitted to us on appeal there were no appellees before the court. In a case of this kind it is desirable that the aetion be permitted to proceed in the customary manner. Plaintiff was entitled to an. opportunity to be heard on the legal questions involved in the court’s conclusion that the complaint should be dismissed. See Harmon v. Superior Court, 307 F.2d 796 (9 Cir. 1962). The defendants have appropriate means under the Rules of Civil Procedure to move for the dismissal of the action or for summary judgment. At that time both sides will have full opportunity to present their contentions and whatever conclusion the District Judge may arrive at on the merits (See Sheridan v. Williams, 333 F.2d 581 (9 Cir. 1964)) will have the benefit of the views of the contending parties on the merits and on the jurisdictional question.”" }, { "docid": "7099918", "title": "", "text": "this Circuit bad faith prosecution has been held sufficient to support a damage judgment against state law enforcement officials under 42 U.S.C. § 1983, despite the immunity of the federal prosecutor. Wheeler v. Cosden Oil and Chemical Co., 734 F.2d at 254. For the first time, we are called upon to examine a jury finding of liability for mali cious prosecution under § 1983. We may not reverse lightly. We may reverse a jury’s finding of fact only if “the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict.” Boeing Company v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc). To engage in such an examination, it is necessary to look carefully at the factual settings that have been held sufficient to survive a motion to dismiss in Dombrowski, Shaw and Wheeler. In Dombrowski, members of the Southern Conference Educational Fund, Inc. sought an injunction restraining the Governor, police and law enforcement officials of Louisiana from prosecuting them under the Louisiana Subversive Activities and Communist Control Law, and Communist Propaganda Control Law. Initially, plaintiffs were arrested. Later a state judge quashed the arrest warrants as not based on probable cause, and the court granted a motion to suppress evidence seized in an illegal raid of plaintiff’s offices. A three judge court was convened to consider the constitutionality of the Louisiana statutes. Soon thereafter a state grand jury was convened. The three judge court issued a temporary restraining order against the prosecutions pending hearing. When the TRO was dissolved by the three judge court, the grand jury returned indictments against the individual appellants. The Supreme Court said, [Plaintiffs] have attacked the good faith of the appellees in enforcing the statutes, claiming that they have invoked, and threaten to continue to invoke, criminal process without any hope of ultimate success, but only to discourage appellants’ civil rights activities. If these allegations state a claim under the Civil Rights Act, 42 U.S.C. § 1983, as we believe they do ... the interpretation ultimately put" }, { "docid": "6744431", "title": "", "text": "agree with the district court and affirm the order insofar as it granted summary judgment on the claim contained in count one of the complaint. The second count of the complaint charged that the prosecutor and assistant prosecutor violated constitutional rights of the plaintiffs by maliciously causing them to be indicted and arrested for perjury and other offenses in connection with the recall petitions. The other defendants were charged in essence with conspiring with the two prosecutors, acting under color of state law, to deprive plaintiffs of the constitutional right to petition for redress of grievances and their right to be free of unlawful prosecution and arrest. The district court held that the two prosecutors were entitled to immunity from a suit for damages for actions taken in their official capacities. On appeal the plaintiffs contend that these two defendants were acting in an investigating, rather than a prosecuting role. However, our examination of the allegations of the complaint leads to the conclusion that the activities of the two prosecutors which were the basis of count two were within the scope of their duties in initiating and pursuing a criminal prosecution. A state prosecuting attorney, so acting, is absolutely immune from a civil suit for damages under 42 U.S.C. § 1983. Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). The order dismissing the defendants Mitrovich and Futterer is affirmed. The district court granted summary judgment to the remaining defendants on the claim contained in count two. It reasoned that with dismissal of the only two state officials clothed with authority to initiate criminal prosecutions, the allegations against the other defendants failed to state a claim of conduct “under color of law” as required to support recovery under 42 U.S.C. § 1982: As the public officials alleged to have procured the indictments have been dismissed from the action the defendants who are alleged to have conspired with such officials as regards prosecution of the plaintiffs are not subject to suit under § 1983. Kurz v. State of Michigan, 548 F.2d 172, 173, 175 (CA 6, 1977)." }, { "docid": "11294389", "title": "", "text": "The federal abuse-of-process claim is also a repackaged claim for malicious prosecution, so we do not need to separately address it. POSNER, Circuit Judge, concurring and dissenting. I disagree with the majority only in regard to -its dismissal of the count of the complaint in which the plaintiff alleges that some of the defendants, notably investigator Haskett, acted outside the scope of their prosecutorial duties “with deliberate indifference to Plaintiffs constitutional rights.” Now it’s true that the pleading is clumsy; the count is captioned “Malicious Prosecution Pursuant to Indiana’s Tort Claims Act,” a theory of liability that as explained in the majority opinion has no possible merit and no possible relevance to the plaintiffs federal claims. But two of the specific allegations that foliow the caption state a claim for relief under 42 U.S.C. § 1983, which so far as relates to this case provides that “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in án action at law, suit in equity, or other proper proceeding for redress.” Typically the statute is invoked as a means of enforcing the due process clause of the Fourteenth Amendment. The allegations that seem to me to state a constitutional claim are that “Defendants assisted or caused to be published- statements in the press and on websites and blogs containing information regarding Plaintiffs alleged criminal activity which they knew was false, inaccurate and incomplete and with the intent of harming Plaintiff to Defendants^] benefit,” and also that the defendants “contacted Plaintiffs business clients that had no connection to this matter and advised that she was involved in criminal activity and they should no longer do business with her.” The defendants state that “to the extent Appellant may have feared that the press statements would inflame the public against" }, { "docid": "22075924", "title": "", "text": "below. I am reinforced in this view by the circumstances in which the decision below was rendered. As the record comes to us the district judge simply entered an order directing the dismissal of the complaint because the court had no jurisdiction and at the same time ordered the clerk to file the complaint together with the order of dismissal. As we pointed out in Urbano v. Calissi, 353 F.2d 196 (3d Cir. 1965), where a similar order was entered and where, as here, no service was made on the defendants, plaintiff is entitled to an opportunity to be heard in the court below and defendants have appropriate means under the Rules of Civil Procedure to move for the dismissal of the action or for summary judgment. Thereafter we will have the benefit of the conclusion the district judge arrived at after hearing the contending parties on the jurisdictional question and if need be, on the merits. This procedural requirement seems to me especially desirable in so significant a question as the scope of a prosecutor’s immunity from liability under the Civil Rights Act. I would therefore vacate the dismissal of the complaint and remand the cause for proceedings in the regular course of litigation under the Rules of Civil Procedure. . Cf. Dombrowski v. Pfister, 380 U.S. 479, 490, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), where the Court said that a claim under the Civil Rights Act was made out where it was alleged that state officials, including the attorney general, a district attorney and a member of the legislature, had invoked and were threatening to invoke criminal proceedings in had faith and without any hope of success, but only to discourage plaintiffs’ civil rights activities. . The complaint alleges that the defendant “knew or should have known” that plaintiff was not yet eighteen years of age at the time of the commission of the alleged offenses and therefore was a juvenile subject to the exclusive jurisdiction of the juvenile and domestic relations court. It also alleges that “defendant’s malicious disregard for the aforesaid duties of his office" }, { "docid": "23474976", "title": "", "text": "to serve its purpose, the line between official conduct, as to which there is immunity, and extra-official conduct, as to which there is not, must be drawn without reference to the official’s subjective state of mind. It must also be drawn in a manner that leaves officials room for good faith mistakes about the extent of their authority. Thus, if the circumstances in a particular case were such that a reasonable prosecutor in the defendant’s position could have had a good faith belief that he was authorized by his office to act as he did, immunity will be recognized. In such a case, an allegation that the official acted in bad faith, knowing his conduct to be unauthorized, will not strip the official of absolute immunity. Similarly, absolute immunity will be available, in such a case, even if the authority in fact was lacking under the law. Stated conversely, immunity will be denied only for those acts which a reasonable prosecutor would recognize as being “clearly outside his jurisdiction” to represent the state before the court. Bauers v. Heisel, 361 F.2d 581, 591 (3d Cir.1966). Bauers illustrates the governing principles. It was a civil rights action in which the defendant prosecutor had instituted and prosecuted a criminal proceeding against the plaintiff in a New Jersey court of general jurisdiction. A higher New Jersey court subsequently held that because the defendant had been under 18 years of age at the time of the alleged offense, jurisdiction was lodged exclusively in the Juvenile Court. Accordingly, the indictment, sentence and ensuing incarceration were found to be illegal. The plaintiff alleged that the defendant knew that plaintiff had not reached the age of 18 at the time of the alleged crimes and, accordingly, that the prosecution would deny plaintiff due process of law. We accepted both this allegation and the legal proposition that the prosecution had been beyond the defendant’s authority. We nevertheless held that the defendant was entitled to absolute immunity based on the following rationale: We have already indicated that the primary responsibility of a prosecutor is to vindicate the wrongs which" }, { "docid": "22075879", "title": "", "text": "He contended that the indictments were illegal because he was a juvenile when the offenses were committed. The lower court denied his application, but the Appellate Division of the Superior Court of New Jersey reversed, holding that since Bauers was not eighteen years old when the offenses were committed, jurisdiction over him was lodged exclusively in the Juvenile and Domestic Relations Court, N.J.Stat. Ann. 2A:4-14. Without a reference of the case to the county prosecutor by the juvenile court, N.J.Stat.Ann. 2A:4-15, no criminal process could be invoked against a juvenile. The court ruled that since the indictments were illegal, the pleas and sentences imposed were also illegal and should be expunged from the record. Subsequently, Bauers instituted the present suit, alleging that the defendant, Herbert T. Heisel, Jr., the Hunterdon County Prosecutor at all times relevant hereto, is liable in damages to the appellant for the deprivation of his liberty and for the denial of his right to a speedy trial. The district court ordered the complaint filed and at the same time dismissed it as “lacking in merit and pertain [ing] to the matters over which the court has no jurisdiction.” On this appeal, the sole issue raised is whether the defendant, acting as the Hunterdon County Prosecutor, is immune from suit under the Civil Rights Act, 42 U.S.C. § 1983, R.S. § 1979. Because a full consideration of the arguments presented requires a re-examination of the position taken by this court in Picking v. Pennsylvania R. R., 151 F.2d 240 (C.A.3, 1945), the case was submitted to the court en banc. There is no question that Picking would be dispositive of the immunity issue presently before us. Consequently, the only portion of that opinion which we reconsider deals with the liability of a judicial officer under the Civil Rights Act of 1871. In Picking, it was decided that no immunity would be afforded to a justice of the peace, a member of the minor judiciary in Pennsylvania; however, the language of the opinion is far more sweeping: “* * * [W]e are not unmindful of the absolute privilege" }, { "docid": "2631845", "title": "", "text": "DECISION ON MOTIONS TO DISMISS AND STRIKE SAMUEL P. KING, District Judge. This action arises under Title VII of the Civil Rights Act of 1964 for racial discrimination by an employer against the Plaintiff-employee. Five causes of action are alleged: general harassment, denial of transfer requests, demeaning work assignments, discriminatory discharge, and malicious intent. The Plaintiff demands a jury trial, and seeks as relief an injunction, reinstatement plus backpay, attorneys' fees, and compensatory and punitive damages. While Defendants concede that the fourth cause of action for discriminatory discharge is properly before this court, they move under Rules 8 and 12 of the Federal Rules of Civil Procedure to dismiss the other four causes of action, and to strike the demand for a jury trial along with the request for damages. I agree with Defendants: the Plaintiff has but one valid cause of action here; and under Title VII, he has no rights to a jury trial, or to compensatory and punitive damages. Motion to Dismiss the First Three Causes of Action: The court does not rule upon the Defendants’ contention that the complaint fails to meet the requirements of Rule 8(a)(2), for I agree that there is no subject-matter jurisdiction over the three causes of action in question. The jurisdiction of this court under § 2000e-5(f) (3) is limited to claims which have been made the subject of a timely charge before the Equal Employment Opportunity Commission (hereinafter “EEOC”). Nishiyama v. N. American Rockwell Corp., supra note 2. Since Plaintiff initially instituted proceedings with the Hawaii Department of Labor, a timely charge before the EEOC would be one filed “within three hundred days after the alleged unlawful employment practice occurred.” § 2000e-5(e). In this case, the EEOC charge was filed on February 20, 1973: alleged unlawful employment practices occurring prior to April 27, 1972 are therefore barred. The court cannot determine which acts happened before or after April 27, 1972 because the first three causes of action fail to specify the dates of the alleged discriminatory practices. Rather than amend his complaint and argue that the discriminatory acts happened after" }, { "docid": "23480170", "title": "", "text": "the state criminal charges, Fabrikant, proceeding pro se, and her co-plaintiff, an attorney, filed a federal civil rights suit pursuant to 42 U.S.C. § 1983 against various persons involved in her state criminal case, including the SPCA, several of its employees, veterinarians and veterinary technicians, and some of the prospective adopters who originally alerted the SPCA about the dogs’ conditions. In the complaint, Fabrikant sought hundreds of millions of dollars in compensatory and punitive damages. The complaint included federal claims for malicious prosecution and for violations of her rights to due process, the presumption of innocence, counsel, and freedom from unreasonable searches and seizures. In addition, the complaint included several pendent state-law claims. On appeal, Fabrikant has abandoned her state-law claims. Defendants moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The district court granted the motion, concluding that Fabrikant had failed to plead sufficient facts to establish that any of the defendants were state actors, a requirement for a § 1983 action, and that, even assuming arguendo that the SPCA investigators were state actors, they would be entitled to qualified immunity because their conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Fabrikant v. French, 328 F.Supp.2d 303, 310-12 (N.D.N.Y.2004) (“Fabrikant I”). Fabrikant and her co-plaintiff appealed. III. First Appeal On appeal, we vacated the district court’s decision and remanded for further proceedings. Schindler v. French, 232 Fed.Appx. 17 (2d Cir.2007) (summary order). We agreed with the district court that plaintiffs had “failed to sufficiently allege” that the SPCA “was acting under color of state law,” as plaintiffs had failed to allege “that the [SPCA] was a state entity, or had otherwise acted under color of state law through some relationship with, or authority vested by, the State.” Id. at 19. Accordingly, we found that the district court had “properly granted defendants’ motion to dismiss the non-conspiracy claims against [SPCA].” Id. Nevertheless, we vacated and remanded “because it is the usual practice upon granting a motion to dismiss to allow leave to replead,”" }, { "docid": "23474977", "title": "", "text": "court. Bauers v. Heisel, 361 F.2d 581, 591 (3d Cir.1966). Bauers illustrates the governing principles. It was a civil rights action in which the defendant prosecutor had instituted and prosecuted a criminal proceeding against the plaintiff in a New Jersey court of general jurisdiction. A higher New Jersey court subsequently held that because the defendant had been under 18 years of age at the time of the alleged offense, jurisdiction was lodged exclusively in the Juvenile Court. Accordingly, the indictment, sentence and ensuing incarceration were found to be illegal. The plaintiff alleged that the defendant knew that plaintiff had not reached the age of 18 at the time of the alleged crimes and, accordingly, that the prosecution would deny plaintiff due process of law. We accepted both this allegation and the legal proposition that the prosecution had been beyond the defendant’s authority. We nevertheless held that the defendant was entitled to absolute immunity based on the following rationale: We have already indicated that the primary responsibility of a prosecutor is to vindicate the wrongs which have been committed against society. This is precisely what appellee was doing when the denial of appellant’s liberty occurred. The mere fact that the New Jersey Legislature had excised from his responsibility the prosecution of individuals who were under the age of eighteen when they committed acts which would otherwise be punishable offenses does not indicate that he was acting clearly outside his jurisdiction. Bauers, 361 F.2d at 591; see also Snell v. Tunnell, 920 F.2d 673, 694 (10th Cir.1990) (“[wjhile a prosecutor might lose absolute immunity when he acts with a complete and clear absence of authority, such a condition does not occur when a prosecutor has an arguable basis of authority”). With this background, we turn to the facts of this case. Borzillo was an attorney in private practice who was engaged by CYS from time to time to represent it in dependency proceedings. By December 18, 1991, her representation of CYS in Susanne’s dependency matters was entering its 43rd month. During that representation, there had been countless appearances before the court and," }, { "docid": "15732213", "title": "", "text": "temper their decisions with the sole view of avoiding disgruntled litigants. Judges would require the constant service of members of the bar in defending their actions, and would always face the peril of showing favoritism toward these attorneys whose services they have been required to invoke. This necessity would again tend to convince an unsuccessful litigant that rights under the Civil Rights Statutes have been denied. In such cases where judges should disqualify themselves as when counsel had previously served in their behalf, circumstances would prove untenable in those numerous judicial districts where the complement of the court consists of a single judge. Indeed, judges not only would be confronted with the stark realism of having their savings and holdings frittered away in defending themselves against a multiplicity of frivolous and unfounded civil suits, but would also suffer the embarrassment and degradation of defending themselves against the sniping and collateral attacks of dissatisfied litigants. It would create an endless chain and vicious circle to which no solution or correction could ever be attained. The independence of the judiciary would be of little value if judges could be subjected to the cost and inconvenience and distractions of a trial upon the conclusion of a case, or to the hazard of a judgment against them based upon a jury’s speculation as to motives. In times of political passion, vindictive motives are readily attributed to judicial condúct and is readily believed. Courts are not the place for such controversies. Self-discipline and the voters must be the ultimate reliance for discouraging or correcting such abuses. I, therefore, conclude, admitting the allegations of the amended complaint to be true and construing each of said' allegations most favorable to the plaintiff, that the amended complaint fails to state a cause of action upon which relief can be granted against any of the defendants in said proceeding, individually or jointly. I re-affirm my belief that members of the Supreme Court of the Commonwealth of Pennsylvania, or of any other court of record or of general jurisdiction in the Commonwealth of Pennsylvania, are immune and exempt from civil" }, { "docid": "683097", "title": "", "text": "not by the law made an offence, and proceed to the arrest and trial of a party charged with such act, or should sentence a party convicted to a greater punishment than that authorized by the law upon its proper construction, no personal liability to civil action for such acts would attach to the judge, although those acts would be in excess of his jurisdiction, or of the jurisdiction of the court held by him, for these are particulars for his judicial consideration, whenever his general jurisdiction over the subject-matter is invoked. . . .” 80 U.S. (13 Wall.) at 351-352. (Emphasis supplied.) Since prosecuting attorneys are afforded the same immunity as judges, the exception to prosecutorial immunity would be acts undertaken which are clearly beyond the scope of the jurisdiction of the prosecutor’s office, e. g., a state district attorney purporting to prosecute a citizen for a federal offense. Accepting as true all the allegations of the complaint sub judice, it is clear that magistrate Woods and district attorney Zimmerman are immune as a matter of law from liability for damages. Although it is alleged that they acted improperly and in excess of their jurisdiction, it is apparent that they both were acting within the scope of their jurisdiction under the facts alleged in the complaint. A police officer is not immune from liability for damages under the Civil Rights Act, although he has available the affirmative defense of good faith, that is, the defense that even if his acts did violate plaintiff’s constitutional rights, the officer reasonably believed in good faith that said acts were constitutional. Pierson v. Ray, 386 U.S. at 555-557, 87 S.Ct. 1213; Fisher v. Volz, 3 Cir. 1974, 496 F.2d 333, 348 & n. 27; Rodriguez v. Jones, 5 Cir. 1973, 473 F.2d 599; Bivens v. Six Unknown Named Agents, 2 Cir. 1972, 456 F.2d 1339. Therefore, since officer Ulrich is not immune and good faith is an affirmative defense, the dismissal of the damage claims against him is predicated solely on the court’s previous holding that a civil rights suit for dam ages" }, { "docid": "13927564", "title": "", "text": "said: “While there may be extreme circumstances where such a right should be denied for plain lack of merit, we think that, particularly in pro se cases, the right to proceed in forma pauperis should generally be granted where the required affidavit of poverty is filed. This approach minimizes, to some extent, disparity in treatment based on economic circumstances. An attack on the truth of such affidavit or the sufficiency of the complaint should be left for appropriate disposition after service has been made on the defendants.” We have also pointed out in a number of cases that it is desirable that actions such as this be permitted to proceed in the customary manner and that a plaintiff should have an opportunity to be heard on the legal questions involved in the determination whether his complaint should be dismissed. We said in Urbano v. Calissi, 353 F.2d 196, 197 (3 Cir. 1965): “The defendants have appropriate means under the Rules of Civil Procedure to move for the dismissal of the action or for summary judgment. At that time both sides will have full opportunity to present their contentions and whatever conclusion the District Judge may arrive at on the merits (See Sheridan v. Williams, 333 F.2d 581 (9 Cir. 1964) will have the benefit of the views of the contending parties on the merits and on the jurisdictional question.” The present pro se complaint is characteristically diffuse. It alleges that a prison rule which permits prisoners to purchase books only when the books are needed in connection with a course of study then being pursued has been discriminatorily applied to plaintiff and that this rule is unreasonable. It also claims the rules regulating prisoners’ rights to acquire books are not uniform throughout the prison system and that the lack of uniformity is racially motivated and that more restrictive rules are applied in the prisons with a high percentage of black prisoners. We cannot say that such claims are on their face so utterly without legal merit that the complaint should be condemned as frivolous under 28 U.S.C. § 1915 without" }, { "docid": "23347450", "title": "", "text": "surrendering certain of her constitutional rights. We do not now undertake to assess the legal sufficiency of these allegations. As noted above, the district court did not dismiss the action for failure to state a claim. If that court had done so, plaintiff would have had an opportunity to amend her complaint in an attempt to overcome the deficiency. No responsive pleading has yet been filed by defendants, and under Rule 15(a), Federal Rules of Civil Procedure, plaintiff was therefore entitled to amend her complaint once as a matter of course. Lacking assistance of counsel and obviously lacking knowledge of the procedure available, and perhaps also confused by the grounds for dismissal relied upon by the district court, plaintiff chose to appeal rather than file an amended complaint. Under these special circumstances we think plaintiff should be afforded an opportunity to file an amended complaint, hopefully with the assistance of counsel. An amended complaint cannot save her cause, however, if it is determined in the remanded district court proceedings that plaintiff cannot, in any event, establish a claim under the Civil Rights Act because she failed to exhaust adequate state administrative remedies designed to test her threatened discharge. Finally, defendants urge that this action was properly dismissed because the entry of judgment against plaintiff in the state action growing out of plaintiff’s discharge from the College faculty is res judicata. In the state action plaintiff grounded her claim in part upon her employment contract, in part upon rights and procedures provided by state statute and regulations and the state constitution, and in part upon rights guaranteed by the Constitution of the United States. Without reaching the merits, the state trial court dismissed all aspects of her claim on the ground that she failed to exhaust her administrative remedies. As before noted, plaintiff’s appeal to the state supreme court was dismissed for lack of prosecution. Under ordinary circumstances a state court adjudication that a teacher was not wrongfully discharged would be res judicata in a subsequent federal civil rights action growing out of the same incident. See Frazier v. East Baton" }, { "docid": "22018356", "title": "", "text": "of the opportunity for further employment. Plaintiff contends that all of the aforementioned terms and conditions of work and the advantages, benefits and rights allegedly denied him by defendant were available to his similarly situated counterparts who were not of Slavic origin. He asserts jurisdiction for the instant lawsuit under: (1) Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.; (2) the Civil Rights Act of 1870, 42 U.S.C. § 1981; and (3) the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202. The merits of plaintiff’s allegations are not now before me. The only matter presently before the Court is a motion to dismiss filed by defendant pursuant to Rule 12(b) of the Federal Rules of Civil Procedure. Specifically, defendant Corning moves to dismiss plaintiff’s complaint (1) to the extent that it depends upon the provisions of 42 U.S.C. § 1981, and (2) to the extent that it seeks a declaratory judgment under 28 U.S.C. §§ 2201 and 2202, and F.R.Civ.P. 57. As to § 1981, defendant argues that allegations of discrimination based on national origin are not cognizable under that statute, and that the Court lacks subject matter jurisdiction to entertain thereunder a claim of discrimination based on national origin. As to declaratory relief, defendant contends that the same is inappropriate in this case because a special statutory proceeding has been provided for the determination of rights and duties arising under Title VII. The parties have briefed these questions ably and candidly. After due consideration of their respective positions, I have concluded that defendant’s motion should be granted and the complaint dismissed to the extent that it is grounded upon either 42 U.S.C. § 1981 or 28 U.S.C. §§ 2201 and 2202. I As a general matter, it is noted that consideration of the issues now before this Court is necessarily colored by a natural antipathy towards any form of class-based discrimination. Such activity is hardly to be nourished or ignored; where it is averred, a due regard for the shared ideals of our society impels an initial inclination to foreclose no" }, { "docid": "22075923", "title": "", "text": "in nature. That area therefore should be included within thé scope of a partial, quasi-judicial immunity. The prosecutor’s decision as to the appropriate court in which prosecution should be had is a matter in which I would hold a prosecutor immune unless there appears an intentional and malicious abuse of his authority. It is in such an area, and to this extent only, that I would give recognition to the quasi-judicial aspect of the prosecutor’s function. In the present case the complaint is not made against the prosecutor’s conduct in the trial of the case, but rather in his choice of the court before which the plaintiff should be tried. This charge appears to me to fall within an area of partial immunity. However, since this boundary between partial immunity and full liability would now be delineated for the first time and since we are dealing with an inartistically drawn complaint framed by a layman pro se, I would not dismiss it finally but would afford the plaintiff an opportunity to amend in the court below. I am reinforced in this view by the circumstances in which the decision below was rendered. As the record comes to us the district judge simply entered an order directing the dismissal of the complaint because the court had no jurisdiction and at the same time ordered the clerk to file the complaint together with the order of dismissal. As we pointed out in Urbano v. Calissi, 353 F.2d 196 (3d Cir. 1965), where a similar order was entered and where, as here, no service was made on the defendants, plaintiff is entitled to an opportunity to be heard in the court below and defendants have appropriate means under the Rules of Civil Procedure to move for the dismissal of the action or for summary judgment. Thereafter we will have the benefit of the conclusion the district judge arrived at after hearing the contending parties on the jurisdictional question and if need be, on the merits. This procedural requirement seems to me especially desirable in so significant a question as the scope of a" }, { "docid": "8838562", "title": "", "text": "VII of the Act. Gibson could have cured the fault as soon as he received his right-to-sue notice simply by amending his complaint to include the necessary allegation and the fact of his receipt of the notice. * * * ” 506 F.2d at 652. In contrast, the motion to dismiss of respondents in this case did not “clearly [call appellant’s] attention to the fatal fault in [her] complaint.” Therefore the question arises whether, despite appellant’s failure to allege exhaustion, leave to amend should have been granted. Rule 15 of the Federal Rules of Civil Procedure provides that leave to amend a complaint shall be freely given when justice so requires. The district court herein dismissed plaintiff’s complaint on July 8, 1977, finding that she had failed to state a cause of action under 42 U.S.C. § 1983, and that while she had made out a claim of age and sex discrimination, she had failed to allege the requisite exhaustion of administrative remedies which was required to give the court jurisdiction over her discrimination claims. Thereafter on July 19, 1977, plaintiff’s proposed amended complaint in which she set forth the requisite exhaustion having been submitted to the court, the court nonetheless refused to vacate its earlier order on the basis that it was without jurisdiction and therefore without authority to permit the amendment. The court’s conclusion is faulty. In Austin v. House of Vision, Inc., 385 F.2d 171 (7th Cir. 1967), appeal after remand 404 F.2d 401, where the plaintiff failed to make several allegations necessary to state a claim under the antitrust laws and the district court denied leave to amend, this Court stated in reversing the decision of the district court: “Under the Federal Rules of Civil Procedure, 28 U.S.C.A., a plaintiff is not required to allege the detailed facts which support his claim; he need only make a brief, plain statement sufficient to notify the defendant of the theory of his claim and the grounds which support it. Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). “Where, as here, plaintiff seeks" }, { "docid": "22075925", "title": "", "text": "prosecutor’s immunity from liability under the Civil Rights Act. I would therefore vacate the dismissal of the complaint and remand the cause for proceedings in the regular course of litigation under the Rules of Civil Procedure. . Cf. Dombrowski v. Pfister, 380 U.S. 479, 490, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), where the Court said that a claim under the Civil Rights Act was made out where it was alleged that state officials, including the attorney general, a district attorney and a member of the legislature, had invoked and were threatening to invoke criminal proceedings in had faith and without any hope of success, but only to discourage plaintiffs’ civil rights activities. . The complaint alleges that the defendant “knew or should have known” that plaintiff was not yet eighteen years of age at the time of the commission of the alleged offenses and therefore was a juvenile subject to the exclusive jurisdiction of the juvenile and domestic relations court. It also alleges that “defendant’s malicious disregard for the aforesaid duties of his office caused plaintiff to be denied a speedy trial”, notwithstanding five letters from plaintiff over a period from approximately May, 1951 to April, 1953, all requesting speedy trial. . We said in Urbano: “It appears that none of the defendants has been served with the complaint. There is therefore no party defendant of record in the proceeding. As a result, when the case was submitted to us on appeal there were no appellees before the court. In a case of this kind it is desirable that the aetion be permitted to proceed in the customary manner. Plaintiff was entitled to an. opportunity to be heard on the legal questions involved in the court’s conclusion that the complaint should be dismissed. See Harmon v. Superior Court, 307 F.2d 796 (9 Cir. 1962). The defendants have appropriate means under the Rules of Civil Procedure to move for the dismissal of the action or for summary judgment. At that time both sides will have full opportunity to present their contentions and whatever conclusion the District Judge may arrive at" }, { "docid": "17462563", "title": "", "text": "shortly thereafter. By this time it was March 21, and Schneyder had been locked up for 54 days — 48 of them after the February 2 continuance. Schneyder sued Smith and the Philadelphia District Attorney’s office, filing a complaint which included claims under 42 U.S.C. § 1983 and state law. Only the § 1983 claim against Smith remains in the case; it alleges that Smith violated Schneyder’s Fourth Amendment rights “by failing to notify Judge Means or take any steps to have plaintiff released from custody knowing that she would not be needed as a witness in the underlying criminal case for several more months.” The District Court initially granted Smith’s Rule 12 motion to dismiss the § 1983 claim on the .basis that she was entitled to absolute prosecutorial immunity, but a panel of this court reversed. Odd v. Malone, 538 F.3d 202 (3d Cir.2008). After remand and discovery, Smith invoked both absolute and qualified immunity and moved for summary judgment. The District Court rejected Smith’s arguments and denied the motion. Schneyder v. Smith, 709 F.Supp.2d 368 (E.D.Pa.2010). This appeal ensued. II We have appellate jurisdiction under the collateral order doctrine: “28 U.S.C. §. 1291 confers appellate jurisdiction over the District Court’s denial, at the summary-judgment stage, of [a] defendant’s] claim that [she is] entitled to absolute or qualified immunity, to the extent that denial turns on questions of law.” Bayer v. Monroe Cnty. Children & Youth Servs., 577 F.3d 186, 191 (3d Cir.2009) (citations omitted). There are no material factual disputes, Smith having conceded various of the plaintiffs factual averments for purposes of this motion. We review the District Court’s denial of summary judgment de novo, applying the same test that the District Court should have applied and viewing the facts in the light most favorable to the nonmoving party. Id. Ill “The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 815, 172" }, { "docid": "5153936", "title": "", "text": "OPINION EDWARD WEINFELD, District Judge. Marco Cerbone, the plaintiff, after a jury in Westchester County Court failed to reach a verdict, was convicted upon a retrial on charges of burglary in the third degree, petit larceny and criminal mischief. He is now serving concurrent sentences of 3-6 years, 1 year and 1 year respectively on these charges. Notwithstanding that his judgment of conviction is in effect and his appeal to the Appellate Division remains unperfected to date, Cerbone commenced this action pursuant to 42 U.S.C. § 1983 seeking injunctive relief and damages against the District Attorney of Westchester County, the County of Westchester, his defense attorney and the Police Department of the Village of Pelham Manor for alleged violations of his constitutional rights with respect to his arrest, trial and conviction. All defendants move to dismiss the complaint for failure to state a claim upon which relief can be granted or for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure. Cerbone, upon his affidavit, has cross-moved for summary judgment pursuant to Rule 56. The defendants have submitted opposing affidavits and press their motions under Rule 12. The issues presented by plaintiff’s motion bristle with genuine issues of fact; accordingly, his cross-motion for summary judgment is denied. The defendants’ motions are granted. In reaching this conclusion, the Court has examined the complaint mindful that the pleading requirements are considerably more relaxed for plaintiffs proceeding pro se and that it should not be dismissed unless it appears beyond doubt that Cerbone can prove no set of facts in support of his claim that would entitle him to relief. District Attorney Cerbone alleges that Carl A. Vergari, District Attorney of Westchester Coilnty, maliciously prosecuted him, suborned perjury before the grand jury that indicted him, inadequately instructed that grand jury and suppressed evidence at his trial. Entirely apart from the absence of the slightest factual support for these allegations, under Imbler v. Pachtman, a prosecutor in initiating a prosecution and in presenting the state’s case, is absolutely immune from liability under § 1983 for" } ]

[ { "docid": "22751525", "title": "", "text": "court’s view, the mere possibility of prejudice to defendants’ rights in the event of a retrial did not outweigh the public’s right of access. Id., at 302-304, 551 F. 2d, at 1261— 1263. The court concluded that the District Court had “abused its discretion in allowing those diminished interests in confidentiality to interfere with the public’s right to inspect and copy the tapes.” Id., at 302, 551 F. 2d, at 1261. It remanded for the development of a plan of release, but noted— in apparent contrast to the admonitions of Judge Gessell — that the “court’s power to control the uses to which the tapes are put once released ... is sharply limited by the First Amendment.” Id., at 304 n. 52, 551 F. 2d, at 1263 n. 52 (emphasis in original). We granted certiorari to review this holding that the common-law right of access to judicial records requires the District Court to release the tapes in its custody. II Both petitioner and respondents acknowledge the existence of a common-law right of access to judicial records, but they differ sharply over its scope and the circumstances warranting restrictions of it. An infrequent subject of litigation, its contours have not been delineated with any precision. Indeed, no case directly in point — that is, addressing the applicability of the common-law right to exhibits subpoenaed from third parties — has been cited or discovered. A It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents. In contrast to the English practice, see, e. g., Browne v. Cumming, 10 B. & C. 70, 109 Eng. Rep. 377 (K. B. 1829), American decisions generally do not condition enforcement of this right on a proprietary interest in the document or upon a need for it as evidence in a lawsuit. The interest necessary to support the issuance of a writ compelling access has been found, for example, in the citizen’s desire to keep a watchful eye on the workings of public agencies, see, e. g., State ex rel. Colscott" } ]

[ { "docid": "11127966", "title": "", "text": "Communications, Inc., 435 U.S. 589, 597, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978); Media Gen. Operations, Inc. v. Buchanan, 417 F.3d 424, 428 (4th Cir.2005). The right of public access springs from the First Amendment and the common-law tradition that court proceedings are presumptively open to public scrutiny. Va. Dep’t of State Police v. Wash. Post, 386 F.3d 567, 575 (4th Cir.2004). “The distinction between the rights of access afforded by the common law and the First Amendment is significant, because the common law does not afford as much substantive protection to the interests of the press and the public as does the First Amendment.” In re United States for an Order Pursuant to 18 U.S.C. Section 2703, 707 F.3d 283, 290 (4th Cir.2013) (quoting Va. Dep’t of State Police, 386 F.3d at 575) (internal quotation marks omitted). The common- law presumptive right of access extends to all judicial documents and records, and the presumption can be rebutted only by showing that “countervailing interests heavily outweigh the public interests in access.” Rushford, 846 F.2d at 253. By contrast, the First Amendment secures a right of access “only to particular judicial records and documents,” Stone, 855 F.2d at 180, and, when it applies, access may be restricted only if closure is “necessitated by a compelling government interest” and the denial of access is “narrowly tailored to serve that interest,” In re Wash. Post Co., 807 F.2d 383, 390 (4th Cir.1986) (quoting Press-Enter. Co. v. Superior Court, 464 U.S. 501, 510, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (internal quotation marks omitted)). We have cautioned district courts that the right of public access, whether arising under the First Amendment or the common law, “may be abrogated only in unusual circumstances.” Stone, 855 F.2d at 182. As explained above, public access promotes not only the public’s interest in monitoring the functioning of the courts but also the integrity of the judiciary. See Columbus-Am. Discovery Grp., 203 F.3d at 303. “Public access serves to promote trustworthiness of the judicial process, to curb judicial abuses, and to provide the public with a more complete understanding" }, { "docid": "22417821", "title": "", "text": "to speak to him prior to filing the lawsuit. She maintained, however, that he would be “profoundly embarrassed” if the details related in the complaint were to become publicly available. Id. doc. 3 at 3. And she argued that releasing the complaint to the public would “constitute[ ] a profound invasion of her own privacy.” Id. A magistrate judge denied both motions, holding that Beverly failed to demonstrate any basis for sealing documents filed in the case. Beverly appealed the decision to the district court judge, who upheld it by order dated December 16, 2005, concluding that the magistrate’s decision was not contrary to law. Whether judicial records and other case-related information should be sealed or otherwise withheld from the public is a matter left to the sound discretion of the district court. Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 599, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). Accordingly, we will not disturb the district court’s decision to keep the case file public unless we have a “definite and firm conviction that [it] made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.” Moothart v. Bell, 21 F.3d 1499, 1504 (10th Cir.1994) (quotation omitted). Beverly fails to convince us under this standard that the district court abused its discretion in denying the relief requested in her motions. Courts have long recognized a common-law right of access to judicial records. Nixon, 435 U.S. at 597, 98 S.Ct. 1306; Lanphere & Urbaniak v. Colorado, 21 F.3d 1508, 1511 (10th Cir.1994). This right, however, is not absolute. The “presumption of access ... can be rebutted if countervailing interests heavily outweigh the public interests in access.” Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir.1988). “The party seeking to overcome the presumption bears the burden of showing some significant interest that outweighs the presumption.” Id. We agree with the district court that Beverly failed to demonstrate a basis for sealing the complaint or other documents in the case. The complaint contains a detailed history of Beverly’s on-going feud with her family and discloses that" }, { "docid": "23230986", "title": "", "text": "documents, is appropriately filed under seal”). To recapitulate, we hold there is a presumptive right to public access to all material filed in connection with nondiseovery pretrial motions, whether these motions are case dis-positive or not, but no such right as to discovery motions and their supporting documents. B. Countervailing Interests Of course, the fact that a presumption of openness attaches to the discovery documents filed with the pretrial motions in this case does not end our inquiry. Although “the right of access is firmly entrenched, so also is the correlative principle that the right ... is not absolute.” Bank of America, 800 F.2d at 344. Rather, “the strong common law presumption of access must be balanced against the factors militating against access. The burden is on the party who seeks.to overcome the presumption of access to show that the interest in secrecy outweighs the presumption.” Id. (citations omitted). Documents containing trade secrets or other confidential business information may be protected from disclosure. As the Supreme Court stated in Nixon v. Warner Communications, 435 U.S. at 598, 98 S.Ct. at 1312, “courts have refused to permit their files to serve as ... sources of business information that might harm a litigant’s competitive standing.” We too have explained that the presence of trade secrets in court records weighs against the right of access, although we have framed the inquiry as whether the need for secrecy outweighs the presumption of access that normally attaches to such documents. See Westinghouse, 949 F.2d at 663 (“ ‘[t]he potential effects of the disclosure of business information that might harm the litigant’s competitive standing may in some cases meet the burden of [justifying keeping] the judicial record under seal’ ”) (quoting district court opinion); see also Littlejohn, 851 F.2d at 685. Under Fed.R.Civ.P. 26(c)(7), the district court, for good cause shown, may grant a protective order requiring that “a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way.” Fed.R.Civ.P. 26(c)(7). However, the Rules also explain that “courts have not given trade secrets automatic and" }, { "docid": "23230985", "title": "", "text": "law of presumptive access to documents filed in court does not extend to material filed with discovery motions may lead the parties to shield from view material which should not be sealed. We need not decide here whether we would interpret the Federal Rules of Civil Procedure to permit a member of the public to challenge an overly protective sealing order. See In re “Agent Orange” Prod. Liab. Litig., 821 F.2d 139, 146 (2d Cir.) (permitting such intervention), cert. denied, 484 U.S. 953, 108 S.Ct. 344, 98 L.Ed.2d 370 (1987). We must rely in the first instance on the district courts to protect the legitimate public interest in filed materials from overly broad and unjustifiable protective orders agreed to by the parties for their self-interests. See United States v. Corbitt, 879 F.2d 224, 228 (7th Cir.1989) (“[T]he public’s right to inspect judicial records may not be evaded by a wholesale sealing-of court papers. Instead, the district court must be sensitive to the rights of the publie in determining whether any particular document, or class of documents, is appropriately filed under seal”). To recapitulate, we hold there is a presumptive right to public access to all material filed in connection with nondiseovery pretrial motions, whether these motions are case dis-positive or not, but no such right as to discovery motions and their supporting documents. B. Countervailing Interests Of course, the fact that a presumption of openness attaches to the discovery documents filed with the pretrial motions in this case does not end our inquiry. Although “the right of access is firmly entrenched, so also is the correlative principle that the right ... is not absolute.” Bank of America, 800 F.2d at 344. Rather, “the strong common law presumption of access must be balanced against the factors militating against access. The burden is on the party who seeks.to overcome the presumption of access to show that the interest in secrecy outweighs the presumption.” Id. (citations omitted). Documents containing trade secrets or other confidential business information may be protected from disclosure. As the Supreme Court stated in Nixon v. Warner Communications, 435 U.S." }, { "docid": "16423096", "title": "", "text": "First Amendment would need to be assessed. Under the common law, as Nixon and the Amodeo cases teach, the presumption would automatically attach, but would have to be weighed based on the need for judicial accountability by the courts in the discharge of their Article III duties, and this weight would in turn have to be balanced principally against the privacy interests of third parties. Under the First Amendment, as Hartford Courant views it, the presumption would attach to sentencing letters only if they passed the “experience and logic” test, or were “derived from or [were] a necessary corollary of the capacity to attend the [sentencing hearing].” Hartford Courant, 371 F.3d at 59. Under conventional First Amendment analysis, if the presumption of access attached, it could be overcome only “by an overriding interest based on findings that [confidentiality] is essential to preserve higher values and [the court’s decision] is narrowly tailored to serve that interest.” Press-Enterprise II, 478 U.S. at 9, 106 S.Ct. 2735 (citation omitted). Thus, access under the common law is broader than the First Amendment in that the presumption under the common law attaches at once, while the presumption comes into play under the First Amendment only if the “experience and logic” test is passed or the document is a necessary corollary to attending the proceeding; however, once the presumption attaches under the First Amendment, its “compelling need/narrowly tailored” standard is stricter than the common law’s more flexible balancing standard. See In re Washington Post Co., 807 F.2d 383, 390 (4th Cir.1986) (“The common law does not afford as much substantive protection to the interests of the press and public as the First Amendment does.”); Rushford v. New Yorker Magazine, 846 F.2d 249, 253 (4th Cir.1988) (“Under common law, there is a presumption of access accorded to judicial records,” which can be rebutted “if countervailing interests heavily outweigh the public interest in access.” Under the First Amendment, on the other hand, “the denial of access must be necessitated by a compelling government interest and nar rowly tailored to serve that interest.”) How then should presentence letters sent" }, { "docid": "18520046", "title": "", "text": "of public access derives from two independent sources: the common law and the First Amendment.” Id. at *2, 1995 U.S.App. LEXIS 25900, at *7 (citing Nixon, supra, 435 U.S. at 597, 98 S.Ct. 1306). The common law presumption of public access applies to “all judicial records and documents,” but can be overcome if, in the trial court’s discretion, the public’s interest is outweighed by “competing interests.” Id. at *2, 1995 U.S.App. LEXIS 25900, at *7. In contrast, the First Amendment guarantee of access is “more limited [in] scope,” and attaches “ ‘only to particular judicial records and documents.’ ” Id. at *3, 1995 U.S.App. LEXIS 25900, at *8 (quoting Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir.1988)). However, where the First Amendment right attaches, it can only be overcome upon a showing that denial of public access is “ ‘necessitated by a compelling governmen tal interest, and is narrowly tailored to serve that interest.’ ” Id. at *3, 1995 U.S.App. LEXIS 25900, at *9 (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-07, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982)). The Policy Management Court concluded that “the First Amendment guarantee of access should not be extended to documents filed in connection with a motion to dismiss,” where “such documents are not considered by the court.” Policy Mgmt., 1995 WL 541623, at *3, 1995 U.S.App. LEXIS 25900, at *10. The Court reasoned that “documents filed with a motion to dismiss that are excluded by the court do not play any role in the adjudicative process.” Id. at *4, 1995 U.S.App. LEXIS 25900, at *11. In the Court’s view, such documents do not “constitute ‘judicial documents’ subject to the common law presumption of access.” Id. at *4, 1995 U.S.App. LEXIS 25900, at *12. According to the Court, the “mere filing of a document with a court does not render the document judicial”; rather, “a document becomes a judicial document when a court uses it in determining litigants’ substantive rights.” Id. at *4, 1995 U.S.App. LEXIS 25900, at *13. “Because the documents played no role" }, { "docid": "22077240", "title": "", "text": "a showing that the denial serves an important governmental interest and that there is no less restrictive way to serve that governmental interest. Globe Newspaper Co. v. Superior Court, 457 U.S. at 606-07, 102 S.Ct. at 2620-21; Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d at 1179. In addition, there are certain exceptions to the presumptive openness of judicial proceedings. Nixon v. Warner Communications, Inc., 435 U.S. at 598, 98 S.Ct. at 1312; Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d at 1179. The party seeking the closure of a hearing or the sealing of a transcript bears the burden of showing that the material is the kind of information that courts will protect and that there is good cause for the order to issue. Zenith Radio Corp. v. Matsushita Electric Industrial Co., 529 F.Supp. 866, 890 (E.D.Pa.1981). Good cause is established on a showing that disclosure will work a clearly defined and serious injury to the party seeking closure. Id. at 891. The injury must be shown with specificity. Id., See In Re Iowa Freedom of Information Council, 724 F.2d 658 (8th Cir.1983). The exception that is closest to this case is the protection of a party’s interest in confidential commercial information, such as a trade secret, where there is a sufficient threat of irreparable harm. Stamicarbon, N. V. v. American Cyanamid Co., 506 F.2d 532, 539-42 (2d Cir.1974). III. From the foregoing discussion it becomes clear that the public and the press possess a First Amendment and a common law right of access to civil proceedings; indeed, there is a presumption that these proceedings will be open. The trial court may limit this right, however, when an important countervailing interest is shown. The question we must decide is whether the district court abused its discretion in denying PNI’s and Dow Jones’ right of access to the civil proceedings. A trial court must satisfy certain procedural and substantive requirements before it can deny access to civil proceedings. A. PROCEDURAL REQUIREMENTS Procedurally, a trial court in closing a proceeding must both articulate the countervailing interest it seeks to" }, { "docid": "22417822", "title": "", "text": "a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.” Moothart v. Bell, 21 F.3d 1499, 1504 (10th Cir.1994) (quotation omitted). Beverly fails to convince us under this standard that the district court abused its discretion in denying the relief requested in her motions. Courts have long recognized a common-law right of access to judicial records. Nixon, 435 U.S. at 597, 98 S.Ct. 1306; Lanphere & Urbaniak v. Colorado, 21 F.3d 1508, 1511 (10th Cir.1994). This right, however, is not absolute. The “presumption of access ... can be rebutted if countervailing interests heavily outweigh the public interests in access.” Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir.1988). “The party seeking to overcome the presumption bears the burden of showing some significant interest that outweighs the presumption.” Id. We agree with the district court that Beverly failed to demonstrate a basis for sealing the complaint or other documents in the case. The complaint contains a detailed history of Beverly’s on-going feud with her family and discloses that Joseph has been diagnosed with Alzheimer’s disease. We are not convinced, however, that Beverly’s privacy concern with respect to this information is sufficiently critical to outweigh the strong presumption in favor of public access to judicial records. Cf. James v. Jacobson, 6 F.3d 233, 239 (4th Cir.1993) (holding that plaintiffs should have been permitted to use pseudonyms so as to prevent their children from learning the true identity of their biological father). We also note that much of the information contained in Beverly’s complaint appears to have been disclosed previously in the public probate court proceedings, further undermining her privacy concerns. C. Motions Panel Rulings Finally, Beverly asks us to reconsider the following two orders issued by motions panels of this court during the pendency of her appeal: (1) a February 6, 2006, order holding that she is not legally authorized to act for Joseph and dismissing him from the appeal; and (2) a March 30, 2006, order imposing sanctions on Beverly for filing frivolous motions and unnecessarily burdening this court. Motions panel decisions are" }, { "docid": "23117742", "title": "", "text": "Press, a case where fear of publicity had led the district judge to place all documents related to the case under seal, the Ninth Circuit held that the First Amendment right of access extends to “pretrial documents in general.” We have not yet had occasion to decide whether the First Amendment access right extends to documents. In In re Knight Publishing Co., 743 F.2d 231 (4th Cir.1984), we found it unnecessary to reach the First Amendment question, because we held that the district court had improperly denied the press its common-law right of access to judicial records and documents. As the opinion in Knight Publishing made clear, the same procedures are required for the evaluation of both common-law and First Amendment access claims. We find it necessary to consider the First Amendment issue today, however, because the present case raises substantive questions as well as procedural ones. The common law does not afford as much substantive protection to the interests of the press and public as the First Amendment does. Under the common law, a trial court’s denial of access to documents is reviewed only for abuse of discretion. Nixon v. Warner Communications, Inc., 435 U.S. 589, 597-99, 98 S.Ct. 1306, 1311-13, 55 L.Ed.2d 570 (1978); In re Knight Publishing Co., 743 F.2d at 235. Under the First Amendment, on the other hand, such a denial must be “ ‘necessitated by a compelling government interest, and ... narrowly tailored to serve that interest.’ ” Press-Enterprise I, 464 U.S. 501, 510, 104 S.Ct. 819, 824, 78 L.Ed.2d 629 (1984), quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607, 102 S.Ct. 2613, 2620, 73 L.Ed.2d 248 (1982). Because we conclude that the more rigorous First Amendment standard should apply in this context, we hold that the First Amendment right of access applies to documents filed in connection with plea hearings and sentencing hearings in criminal cases, as well as to the hearings themselves. IV. The mere existence of a First Amendment right of access to a particular kind of hearing or document does not entitle the press and public to" }, { "docid": "22420826", "title": "", "text": "party seeking action by the court. See Bank of America Nat’l Trust and Sav. Ass’n v. Hotel Rittenhouse Assoc., 800 F.2d 339, 343 (3d Cir.1986). The counsel for The New Yorker even acknowledged that if the case had gone to trial and the documents were thereby submitted to the court as evidence, such documents would have been revealed to the public and not protected under the Order. Because summary judgment adjudicates substantive rights and serves as a substitute for a trial, we fail to see the difference between a trial and the situation before us now. See Anderson v. Cryovac, Inc., 805 F.2d 1, 13 (1st Cir.1986) (recognizing that documents submitted as a part of motions for summary judgment are subject to public right of access); In re Continental Illinois Sec. Litig., 732 F.2d 1302, 1308-10 (7th Cir.1984) (presumption of public right of access applies to motion to terminate derivative claims); Joy v. North, 692 F.2d 880, 893 (2d Cir.1982) (“documents used by parties moving for, or opposing, summary judgment should not remain under seal absent the most compelling reasons”); cf. In re Washington Post Co., 807 F.2d 383, 389 (4th Cir.1986) (because the taking of a guilty plea serves as a substitute for a trial, it may reasonably be treated in the same manner as a trial for First Amendment purposes). Therefore, without some overriding interests in favor of keeping the discovery documents under seal, even the three documents should be unsealed. We certainly recognize that there may be instances in which discovery materials should be kept under seal even after they are made part of a dispositive motion. The mere existence of a First Amendment right of access or of a common law right of access to a particular kind of document does not entitled the press and the public to access in every case. See In re Washington Post Co., 807 F.2d at 390. In order for The New Yorker to invoke such a judicial protection, however, the district court must address the question at the time it grants a summary judgment motion and not merely allow" }, { "docid": "1434797", "title": "", "text": "stated: \" ‘This presumption of access, however, can be rebutted if countervailing interests heavily outweigh the public interests in access,' and ‘[t]he party seeking to overcome the presumption bears the burden of showing some significant interest that outweighs the presumption.’ ” 386 F.3d at 575 (quoting Rushford, 846 F.2d at 253) (emphasis added). Neither Goetz, In re Knight, nor Moussaoui — which all relied on Nixon — use a \"heavily outweigh” standard. Rushford, which Virginia Department of State Police relies on, also relied on Nixon. Moreover, Rushford subsequently states: \"The party seeking to overcome the presumption bears the burden of showing some significant interest that outweighs the presumption.” Rushford, 846 F.2d at 253. As such, to overcome the common law presumption of access, the government’s interests must merely outweigh the public’s interest. WILSON, District Judge, concurring: I concur in the opinion in all respects except the conclusion that there is a presumed common law right of access to § 2703(d) judicial orders and motions separate and apart from a subscriber’s individual right of access. Courts cannot presume common law rights and remedies that conflict with a statutory scheme or a statute’s essential purpose. In 'my view, the presumption here of a common law right of access does precisely that. “[A]brogation of common law principles is appropriate when a contrary statutory purpose is evident.” Zeran v. Am. Online, Inc., 129 F.3d 327, 334 (4th Cir.1997); see also United States v. Texas, 507 U.S. 529, 534, 113 S.Ct. 1631, 123 L.Ed.2d 245 (1993) (“In order to abrogate a common-law principle, the statute must ‘speak directly’ to the question addressed by the common law.” (quoting Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978))). Here, the challenged orders and documents all arise under Title II of the Electronic Communications Privacy Act of 1986, which is commonly known as the Stored Communications Act. The Act was intended “to update and clarify federal privacy protections and standards in light of dramatic changes in new computer and telecommunications technologies.” S.Rep. No. 99-541, at 1 (1986), 1986 U.S.C.C.A.N. 3555, 3555." }, { "docid": "22972052", "title": "", "text": "is not absolute. Our opinions may be read to suggest that there are somewhat different standards, depending on whether access is sought under the common law presumption or under the First Amendment. In Publicker, we required the party opposing access to show “ ‘an overriding interest based on findings that closure is narrowly tailored to serve that interest.’ ” 733 F.2d at 1073. This standard was taken from Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510, 104 S.Ct. 819, 824, 78 L.Ed.2d 629 (1984), a First Amendment case. In Criden I, we held the strong common law presumption of access must be balanced against the factors militating against access. 648 F.2d at 818. See also United States v. Criden, 681 F.2d 919, 921 (3d Cir.1982) (Criden III). The burden is on the party who seeks to overcome the presumption of access to show that the interest in secrecy outweighs the presumption. Because we base our decision in this case on the common law right of access, we will apply the balancing approach articulated in Criden I and Criden III, and do not reach the issue whether that standard differs from that to be applied under the First Amendment. See Smith I, 776 F.2d at 1112. The district court was cognizant that its decision required it to balance the factors favoring secrecy against the common law presumption of access. In denying FAB Ill’s motion for access to the settlement documents, the court held that the “public and private interests in settling disputes” outweighed the “public interest in access to judicial records” and FAB Ill’s private interest in knowing the terms of the settlement. App. at 89a-90a. The balancing of the factors for and against access is a decision committed to the discretion of the district court, see Nixon v. Warner Communications, Inc., 435 U.S. at 599, 98 S.Ct. at 1312, although it is not generally accorded the narrow review reserved for discretionary decisions based on first-hand observations. Criden I, 648 F.2d at 818. Thus, the issue before us is whether the district court abused its discretion in holding that the" }, { "docid": "16423097", "title": "", "text": "the First Amendment in that the presumption under the common law attaches at once, while the presumption comes into play under the First Amendment only if the “experience and logic” test is passed or the document is a necessary corollary to attending the proceeding; however, once the presumption attaches under the First Amendment, its “compelling need/narrowly tailored” standard is stricter than the common law’s more flexible balancing standard. See In re Washington Post Co., 807 F.2d 383, 390 (4th Cir.1986) (“The common law does not afford as much substantive protection to the interests of the press and public as the First Amendment does.”); Rushford v. New Yorker Magazine, 846 F.2d 249, 253 (4th Cir.1988) (“Under common law, there is a presumption of access accorded to judicial records,” which can be rebutted “if countervailing interests heavily outweigh the public interest in access.” Under the First Amendment, on the other hand, “the denial of access must be necessitated by a compelling government interest and nar rowly tailored to serve that interest.”) How then should presentence letters sent directly to the court by third parties be analyzed: under Charmer, the common law or the First Amendment? It would seem that the same presumption of confidentiality that attaches to presentence reports, as well as to pretrial materials, should logically apply to sentencing letters since they share the common goal “of ensuring the free flow of information to the court,” Charmer, 711 F.2d at 1176, and the chilling effect of presumptive disclosure might “adversely affect the sentencing court’s ability to obtain data on a confidential basis from the accused, and from sources independent of the accused, for use in the sentencing process.” Id. at 1171 (quotation omitted). At the hearing on May 27th, counsel for The New York Times drew a distinction between presentence reports, as well as grand jury materials, on the one hand, and sentencing letters on the other hand, in that the former “are part of law enforcement and the executive branch functioning, not Article III functioning,” arguing that there is a difference when “somebody in the executive branch administratively has made" }, { "docid": "3557999", "title": "", "text": "federal rules, is inextricably linked to the third factor of abuse of discretion. Thus, this case really boils down to whether the district court abused its discretion in sealing and redacting the documents here sought by petitioners. That requires an analysis of whether the documents are subject to the Media Representatives’ First Amendment and common law rights of access, and whether the district court clearly-violated a legal duty in its assessment of how those rights apply to the documents. Accordingly, we now turn to a consideration of the merits of the petition. III. ANALYSIS The Media Representatives assert both a common law and a First Amendment right to access the unredacted documents at issue. It is clearly established that court documents are covered by a common law right of access. Nixon v. Warner Communications, 435 U.S. 589, 599, 98 S.Ct. 1306, 1312-13, 55 L.Ed.2d 570 (1978). Under that doctrine, judicial documents are presumptively available to the public, but may be sealed if the right to access is outweighed by the interests favoring nondisclosure. Nixon, 435 U.S. at 602, 98 S.Ct. at 1314. Challenges to closure decisions based on the common law right of access are reviewed for abuse of discretion. Nixon, 435 U.S. at 599, 98 S.Ct. at 1312-13. The Media Representatives further contend there is a First Amendment right of access to the documents. The First Amendment protects the right of the public and the press to attend criminal trials. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 558-81, 100 S.Ct. 2814, 2818-30, 65 L.Ed.2d 973 (1980) (plurality opinion). The Supreme Court has applied a qualified version of this First Amendment right to attend certain pre-trial proceedings in criminal eases which historically have been, and logically should be, open to the public, allowing access except where closure is essential to serve a higher interest and where closure is narrowly tailored. Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 7-9, 106 S.Ct. 2735, 2739-41, 92 L.Ed.2d 1 (1986) (Press-Enterprise II) (recognizing right of access" }, { "docid": "1434778", "title": "", "text": "hold that the district court applied the appropriate standard of review to the magistrate judge’s decisions. B. Subscribers next contend that the district court erred in permitting the Other § 2703(d) Orders and related documents to remain sealed because these documents are subject to the right of access. The right of public access derives from two independent sources: the First Amendment and the common law. Va. Dep’t of State Police v. Wash. Post, 386 F.3d 567, 575 (4th Cir.2004). “The distinction between the rights of access afforded by the common law and the First Amendment is ‘significant,’ because the common law ‘does not afford as much substantive protection to the interests of the press and the public as does the First Amendment.’ ” Id. (quoting Goetz, 886 F.2d at 64; Rushford v. New Yorker Magazine, 846 F.2d 249, 253 (4th Cir.1988)). Specifically, the common law presumes a right to access all judicial records and documents, but this presumption can be rebutted if “the public’s right of access is outweighed by competing interests.” In re Knight Publ’g Co., 743 F.2d 231, 235 (4th Cir.1984); see United States v. Moussaoui 65 Fed.Appx. 881, 886 (4th Cir.2003) (unpublished). On the other hand, the First Amendment provides a right of access only to particular judicial records and documents, and this right yields only in the existence of a “compelling governmental interest ... [that is] narrowly tailored to serve that interest.” Va. Dep’t of State Police, 386 F.3d at 575. i. For a right of access to a document to exist under either the First Amendment or the common law, the document must be a “judicial record.” Goetz, 886 F.2d at 63-64. Whether a certain document is a “judicial record” is a question of law, and we determine it de novo. See id.; Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 121 (2d Cir.2006). Although we have never explicitly defined “judicial records,” it is commonsensical that judicially authored or created documents are judicial records. Thus, we have no difficulty holding that the actual § 2703(d) orders and subsequent orders issued by the court are" }, { "docid": "15581552", "title": "", "text": "undisputed that an FLSA settlement agreement, submitted to a court for judicial approval, is a judicial record that triggers the common law right of public access. Put simply, the public has an interest in determining whether the Court is properly fulfilling its duties when it approves an FLSA settlement agreement. Boone, 79 F.Supp.2d at 609; see also Bank of Am. Nat’l Trust & Sav. Ass’n v. Hotel Rittenhouse Assocs., 800 F.2d 339, 344 (3d Cir.1986) (recognizing that a “court’s approval of a settlement or action on a motion are matters which the public has a right to know about and evaluate”); Stalnaker v. Novar Corp., 293 F.Supp.2d 1260, 1263 (M.D.Ala.2003) (“Absent some compelling reason, the sealing from public scrutiny of FLSA agreements between employees and employers would thwart the public’s independent interest in assuring that employees’ wages are fair and thus do not endanger ‘the national health and well-being.’ ”) (quoting Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 706-07, 65 S.Ct. 895, 89 L.Ed. 1296 (1945)). The presumption of public access can be rebutted, on the other hand, “if countervailing interests heavily outweigh the public interests in access.” Rushford v. New Yorker Magazine Inc., 846 F.2d 249, 253 (4th Cir.1988). “The party seeking to overcome the presumption bears the burden of showing some significant interest that outweighs the presumption.” Id. The Court considers a broad array of factors when weighing the interest in sealing against the interest in public access, including “whether the records are sought for improper purposes such as promoting public scandals or gaining a business advantage; whether release would enhance the public’s understanding of an important historical event; and whether the public has already had access to the information contained in the records.” Knight, 743 F.2d at 235 (citing Nixon, 435 U.S. at 597-608, 98 S.Ct. 1306). Here, the parties advance one interest in support of sealing the settlement agreements: sealing will maintain the confidentiality necessary to “facilitate meaningful discussions” with the approximately 796 pending plaintiffs in other districts “by limiting the scope of [those] negotiations to each plaintiffs specific circumstance.” Doc. 36 at 4. The" }, { "docid": "22420828", "title": "", "text": "continued effect to a pretrial discovery protective order. The district court must comply, not only with certain procedural requirements, but also with certain substantive requirements. With regard to substantive requirements, we find it necessary to decide whether the interests of The Washington Post arise from the First Amendment or from the common law right of access. The common law does not afford as much substantive protection to the interests of the press and the public as does the First Amendment. Under common law, there is a presumption of access accorded to judicial records. Nixon v. Warner Communications, Inc., 435 U.S. 589, 597, 98 S.Ct. 1306, 1311, 55 L.Ed.2d 570 (1978). This presumption of access, however, can be rebutted if countervailing interests heavily outweigh the public interests in access. The trial court may weigh “the interests advanced by the parties in light of the public interests and the duty of the courts.” Id. at 602, 98 S.Ct. at 1314. The party seeking to overcome the presumption bears the burden of showing some significant interest that outweighs the presumption. Hotel Rittenhouse Assoc., 800 F.2d at 344. The trial court’s denial of access to documents is then reviewed only for abuse of discretion. Nixon, 435 U.S. at 597-99, 98 S.Ct. at 1311-12. Under the First Amendment, on the other hand, the denial of access must be necessitated by a compelling government interest and narrowly tailored to serve that interest. Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510, 104 S.Ct. 819, 824, 78 L.Ed.2d 629 (1984); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607, 102 S.Ct. 2613, 2620, 73 L.Ed.2d 248 (1982); In re Washington Post Co., 807 F.2d at 390. In In re Washington Post Co., this Court held that the more rigorous First Amendment standard should apply to documents filed in connection with plea hearings and sentencing hearings in criminal cases. 807 F.2d at 390. We believe that the more rigorous First Amendment standard should also apply to documents filed in connection with a summary judgment motion in a civil case. See Publicker Industries, Inc. v. Cohen, 733 F.2d" }, { "docid": "11127965", "title": "", "text": "of the injury that supplied the requisite case or controversy between Company Doe and the Commission. Consumer Groups have a redressable, actual injury and a personal stake sufficient to make their claims justiciable. We conclude that Consumer Groups’ participation before the district court on the issues of sealing and pseudo-nymity, coupled with their redressable injuries, create an ongoing, adversarial case or controversy vis-a-vis Company Doe, whose interests in maintaining the documents under seal are adverse to those of Consumer Groups. Thus, having determined that Consumer Groups have non-party appellate standing and independent Article III standing to seek appellate review of the district court’s sealing and pseudonymity orders, we deny Company Doe’s motion to dismiss this appeal and turn next to the merits of Consumer Groups’ arguments. III. It is well settled that the public and press have a qualified right of access to judicial documents and records filed in civil and criminal proceedings. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 n. 17, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980); Nixon v. Warner Communications, Inc., 435 U.S. 589, 597, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978); Media Gen. Operations, Inc. v. Buchanan, 417 F.3d 424, 428 (4th Cir.2005). The right of public access springs from the First Amendment and the common-law tradition that court proceedings are presumptively open to public scrutiny. Va. Dep’t of State Police v. Wash. Post, 386 F.3d 567, 575 (4th Cir.2004). “The distinction between the rights of access afforded by the common law and the First Amendment is significant, because the common law does not afford as much substantive protection to the interests of the press and the public as does the First Amendment.” In re United States for an Order Pursuant to 18 U.S.C. Section 2703, 707 F.3d 283, 290 (4th Cir.2013) (quoting Va. Dep’t of State Police, 386 F.3d at 575) (internal quotation marks omitted). The common- law presumptive right of access extends to all judicial documents and records, and the presumption can be rebutted only by showing that “countervailing interests heavily outweigh the public interests in access.” Rushford, 846 F.2d at" }, { "docid": "22420827", "title": "", "text": "absent the most compelling reasons”); cf. In re Washington Post Co., 807 F.2d 383, 389 (4th Cir.1986) (because the taking of a guilty plea serves as a substitute for a trial, it may reasonably be treated in the same manner as a trial for First Amendment purposes). Therefore, without some overriding interests in favor of keeping the discovery documents under seal, even the three documents should be unsealed. We certainly recognize that there may be instances in which discovery materials should be kept under seal even after they are made part of a dispositive motion. The mere existence of a First Amendment right of access or of a common law right of access to a particular kind of document does not entitled the press and the public to access in every case. See In re Washington Post Co., 807 F.2d at 390. In order for The New Yorker to invoke such a judicial protection, however, the district court must address the question at the time it grants a summary judgment motion and not merely allow continued effect to a pretrial discovery protective order. The district court must comply, not only with certain procedural requirements, but also with certain substantive requirements. With regard to substantive requirements, we find it necessary to decide whether the interests of The Washington Post arise from the First Amendment or from the common law right of access. The common law does not afford as much substantive protection to the interests of the press and the public as does the First Amendment. Under common law, there is a presumption of access accorded to judicial records. Nixon v. Warner Communications, Inc., 435 U.S. 589, 597, 98 S.Ct. 1306, 1311, 55 L.Ed.2d 570 (1978). This presumption of access, however, can be rebutted if countervailing interests heavily outweigh the public interests in access. The trial court may weigh “the interests advanced by the parties in light of the public interests and the duty of the courts.” Id. at 602, 98 S.Ct. at 1314. The party seeking to overcome the presumption bears the burden of showing some significant interest that outweighs" }, { "docid": "22420829", "title": "", "text": "the presumption. Hotel Rittenhouse Assoc., 800 F.2d at 344. The trial court’s denial of access to documents is then reviewed only for abuse of discretion. Nixon, 435 U.S. at 597-99, 98 S.Ct. at 1311-12. Under the First Amendment, on the other hand, the denial of access must be necessitated by a compelling government interest and narrowly tailored to serve that interest. Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510, 104 S.Ct. 819, 824, 78 L.Ed.2d 629 (1984); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607, 102 S.Ct. 2613, 2620, 73 L.Ed.2d 248 (1982); In re Washington Post Co., 807 F.2d at 390. In In re Washington Post Co., this Court held that the more rigorous First Amendment standard should apply to documents filed in connection with plea hearings and sentencing hearings in criminal cases. 807 F.2d at 390. We believe that the more rigorous First Amendment standard should also apply to documents filed in connection with a summary judgment motion in a civil case. See Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1067-71 (3d Cir.1984) (the First Amendment guarantees to the public and to the press the right of access to criminal and civil trials); In re Continental Illinois Sec. Litig., 732 F.2d at 1308 (the policy reasons for granting public access to criminal proceedings apply to civil cases as well). Therefore, to limit The Washington Post’s access to the documents submitted in connection with the summary judgment motion, there must be a showing, in the first instance by the district court, that the denial serves an important governmental interest and that there is no less restrictive way to serve that governmental interest. See Globe Newspaper Co., 457 U.S. at 606-07, 102 S.Ct. at 2619-20; Publicker Industries, Inc., 733 F.2d at 1070. In making that determination, the district court must follow the procedural requirements as laid out in In re Knight Publishing Co., 743 F.2d 231 (4th Cir.1984). See In re Washington Post Co., 807 F.2d at 390. First, the district court must give the public adequate notice that the sealing of documents may be ordered.." } ]

[ { "docid": "2532594", "title": "", "text": "judicial finding of brandishing does not evade the requirements of the Fifth and Sixth Amendments. Congress simply took one factor that has always been considered by sentencing courts to bear on punishment and dictated the precise weight to be given that factor. That factor need not be alleged in the indictment, submitted to the jury, or proved beyond a reasonable doubt. Harris v. United States, 536 U.S. 545, 568, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) (internal quotes and citation omitted). Accordingly, Keller’s challenge to this aspect of his sentence is unavailing. C. The enhancement for obstruction of justice is not supported by undisputed statements in the PSR. See Objection to PSR at 3 (“Defendant objects to any inference that he obstructed justice.”). Accordingly, we address Keller’s objection to this enhancement in light of Booker and United States v. Pirani, 406 F.3d 543 (8th Cir.2005) (en banc). Because Keller did not raise a constitutional challenge to the enhancement at sentencing, we conduct plain error review under the four-part test of United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Pirani, 406 F.3d at 549. Pursuant to that test, before we can correct an error not raised at trial, “there must be (1) error, (2) that is plain, and (3) that affects substantial rights.” Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). If all three conditions are met, we may remedy the error only if it “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. The enhancement for obstruction of justice was erroneous in light of Booker because it was imposed on the basis of judge-found facts in a mandatory guidelines regime. See Pirani, 406 F.3d at 551. In these circumstances, the first two Olano factors are satisfied. See id. at 550. Whether the error affected Keller’s substantial rights is another matter. To satisfy this factor, “the defendant must show a ‘reasonable probability,’ based on the appellate record as a whole, that but for the error he would have received a more favorable sentence.” Id. at" } ]

[ { "docid": "20253987", "title": "", "text": "murder sentence. In his brief, Lomeli makes passing reference to an abuse of discretion by the district court. We interpret this statement as an argument that the district court failed to consider the § 3553(a) factors and to be cognizant of the elements listed in section 5G1.3 of the Guidelines. Because this argument was raised for the first time on appeal, we review for plain error. See, e.g., United States v. Starfield, 563 F.3d 673, 674 (8th Cir.2009); United States v. Phelps, 536 F.3d 862, 865 (8th Cir.2008), cert. denied, — U.S. —, 129 S.Ct. 1390, 173 L.Ed.2d 641 (2009). “Under plain error review, the defendant must show: (1) an error; (2) that is plain; and (3) that affects substantial rights.” Phelps, 536 F.3d at 865. If a defendant makes that showing, “an appellate court may exercise its discretion to correct a forfeited error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (quoting Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)). Consecutive sentences are specifically contemplated by the Sentencing Guidelines, which provide that, in cases where the defendant is subject to an undischarged term of imprisonment, “the sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the pri- or undischarged term of imprisonment to achieve a reasonable punishment for the instant offense.” United States Sentencing Commission, Guidelines Manual, § 5G1.3(c) (Nov.1995) ; see also 18 U.S.C. § 3584(a) (authorizing a court to impose concurrent or consecutive sentences absent exceptions that do not apply here and stating that “[m]ultiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently”). In determining whether to impose a concurrent or consecutive sentence, the Guidelines direct the sentencing court to: consider the factors set forth in 18 U.S.C. § 3584 (referencing 18 U.S.C. § 3553(a)) and be cognizant of: (a) the type {e.g., determinate, indeterminate/parolable) and length of the prior undischarged sentence; (b) the time served on the undischarged sentence and the time likely" }, { "docid": "18148200", "title": "", "text": "not assert a Sixth Amendment objection at his sentencing hearing. Thus, we review his sentence for plain error, United States v. Pirani, 406 F.3d 543, 549 (8th Cir.2005) (en banc), a demanding standard not easily met, United States v. Rodriguez-Ceballos, 407 F.3d 937, 940 (8th Cir.2005) (citing United States v. Dominguez Benitez, 542 U.S. 74, 124 S.Ct. 2333, 2340, 159 L.Ed.2d 157 (2004)). Under Federal Rule of Criminal Procedure 52(b), “a court of appeals [has] a limited power to correct errors that were forfeited because not timely raised in district court.” United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). To show plain error, Agboola must demonstrate “(1) error, (2) that is plain, and (3) that affect[s] substantial rights.” Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (internal quotations omitted) (alteration in original). If the defendant meets these three conditions, our court has discretion to remand for resentencing “if(4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal quotations omitted) (alteration in original). We must exercise plain-error review “sparingly.” Jones v. United States, 527 U.S. 373, 389, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999). We can assume the district court committed Booker error when it applied “the Guidelines as mandatory, and the error is plain, that is, clear or obvious, at this time.” Pirani, 406 F.3d at 550. Thus, we must determine whether the error affected Agboola’s substantial rights. To establish such an effect, Agboola must show a “reasonable probability that he would have received a more favorable sentence with the Booker error eliminated by making the Guidelines advisory.” Id. at 551. The record does not indicate the district court would have given Agboola a more lenient sentence absent a Booker error. While the district court “f[ound] no reason to sentence [Agboola] to anything more than the bottom of the applicable guideline range,” it stated “the sentence at the bottom of the applicable guideline range is sufficient to ... adequately cover any issues.” This bottom of the Guidelines range pronouncement “is" }, { "docid": "1854343", "title": "", "text": "Gonzalez-Lopez, — U.S. -, 126 S.Ct. 2557, 2565, 165 L.Ed.2d 409 (2006) (“Nor may a defendant ... demand that a court honor his waiver of conflict-free representation.”). B. Webb challenges the procedural reasonableness of his sentence, claiming that the district court did not “sufficiently consider[] and address[]” all of the sentencing factors found in 18 U.S.C. § 3553(a) and “disregarded and ignored ... the highly positive aspects of [Webb’s] character.” Webb Br. at 28. Because Webb did not raise these issues below, even after the district court asked his counsel whether he had “[a]ny objections to the sentence or the guidelines or anything else here that have not previously been raised,” JA 661, we review the claim for plain error. See United States v. Bailey, 488 F.3d 363, 367 (6th Cir.2007) (explaining that “when the district court asks at sentencing whether there are any objections to the sentence and the appellant raises none, we review the sentence only for plain error”); accord United States v. Bostic, 371 F.3d 865, 872-73 (6th Cir.2004) (requiring district courts to “ask the parties whether they have any objections to [a] sentence just pronounced that have not previously been raised”). To withstand plain-error review, the litigant must show “(1) error, (2) that is plain, and (3) that affect[s] substantial rights” and that “(4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (internal quotation marks omitted). No plain error occurred. To ensure reasonable sentencing, we require a district court to calculate the appropriate guidelines range, to appreciate the advisory nature of the guidelines and to consider the guidelines along with the other relevant statutory factors. United States v. Davis, 458 F.3d 491, 495 (6th Cir.2006). The district court properly calculated the guidelines range (27-33 months) and acknowledged that the guidelines are now advisory. See JA 659. After noting that the § 3553(a) factors guided its decision, the court explained that “Webb' has engaged in considerable additional criminal activity other than ... what he was convicted of" }, { "docid": "1337147", "title": "", "text": "the sentence on Count II to the statutory maximum sentence”). Furthermore, a district court may “run sentences from multiple counts consecutively, rather than concurrently, if the Guideline sentence exceeds the statutory maximum sentence for each count.” United States v. Zimmer, 299 F.3d 710, 725 (8th Cir.2002) (quotation omitted); see U.S.S.G. § 5G1.2(d). Therefore, the district court committed no procedural error in sentencing Howe to 120 months’ imprisonment on the felon in possession count and a consecutive 60 months’ imprisonment on the escape count. Next, Howe argues that the district court erroneously applied a presumption of reasonableness to the advisory sentencing guidelines range. Near the beginning of the sentencing hearing, the district court acknowledged the Supreme Court’s holding in Rita v. United States, — U.S. —, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), saying, “[T]here was a ease in June of this year, the Rita case, by the United States Supreme Court, which held that any criminal sentence within the guideline range would be presumed to be a reasonable sentence. So you need to be aware of that.” Sentencing Tr. at 11-12. Howe did not object to this statement as sentencing, so we review his argument for plain error. See United States v. Gaddy, 532 F.3d 783, 790-91 (8th Cir.2008) (citing United States v. Pirani, 406 F.3d 543, 550 (8th Cir.2005) (en banc)). Under plain error review, Howe must prove an “(1) error, (2) that was plain, and (3) that affected substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (quotation and alterations omitted). Even if we assume that the district court erroneously thought that it could presume the guidelines range was reasonable and that such an error was plain, we conclude that the error did not affect Howe’s substantial rights. After this statement, the district court listened to and considered the parties’ arguments about the guidelines range calculation and the 18 U.S.C. § 3558(a) factors. It then reviewed the §" }, { "docid": "15657113", "title": "", "text": "against judicial fact-finding. See Booker, 125 S.Ct. at 756. In this case, the facts relied on by the district court as the grounds for the § 4B1.5(b)(l) enhancement were either admitted by Paz in letters sent prior to sentencing or deemed admitted when Paz withdrew his objection to the PSR’s recitation of the facts relating to the other instances of illegal sexual conduct. The § 4A1.3(a) upward departure was based on uncontested prior convictions and unob-jected-to facts relating to those convictions which were also in the PSR. Although the district court did not find facts in violation of the Sixth Amendment, Paz still could argue that the district court improperly applied the guidelines in a mandatory fashion. See United States v. Pirani, 406 F.3d 543, 551 (8th Cir.2005); United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.2005). At his sentencing, however, Paz did not object to his sentence on the basis of “Apprendi or Blakely error or [argue] that the Guidelines were unconstitutional.” Pirani, 406 F.3d at 549 (quoting United States v. Antonakopoulos, 399 F.3d 68, 76 (1st Cir.2005)). Because Paz failed to preserve for appellate review any challenge to the guidelines, we apply the plain-error test set forth in United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Pirani, 406 F.3d at 549-50. The test has been stated as follows: before an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. at 550 (quoting Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)). As in Pirani, the first two factors are satisfied because the district court erred in applying the guidelines in a mandatory fashion, and that error is plain at the time of appellate review. See Pirani, 406 F.3d at 550. To" }, { "docid": "20253986", "title": "", "text": "court’s decision to impose a consecutive sentence is similarly reviewed for reasonableness. See United States v. Shafer, 438 F.3d 1225, 1227 (8th Cir.2006). After reviewing the record, we can discern no procedural error in the court’s imposition of a 235-month sentence. The district court properly calculated Lomeli’s offense level and criminal history and correctly determined Lomeli’s advisory Guidelines sentencing range. The court then considered the 18 U.S.C. § 3553(a) factors in arriving at the sentence it deemed appropriate, and adequately explained its reasons for sentencing Lomeli at the top of the advisory Guidelines range, citing the seriousness of Lomeli’s past criminal conduct, the fact that this was his second drug-related conviction, and the fact that he is a violent and threatening person. As we explained above, it was not error for the court to consider Lomeli’s criminal history as this did not violate the U.S.-Mexico Extradition Treaty. We next turn to the question of whether the district court committed procedural error in ordering Lomeli’s sentence to run consecutively to the undischarged portion of his Texas murder sentence. In his brief, Lomeli makes passing reference to an abuse of discretion by the district court. We interpret this statement as an argument that the district court failed to consider the § 3553(a) factors and to be cognizant of the elements listed in section 5G1.3 of the Guidelines. Because this argument was raised for the first time on appeal, we review for plain error. See, e.g., United States v. Starfield, 563 F.3d 673, 674 (8th Cir.2009); United States v. Phelps, 536 F.3d 862, 865 (8th Cir.2008), cert. denied, — U.S. —, 129 S.Ct. 1390, 173 L.Ed.2d 641 (2009). “Under plain error review, the defendant must show: (1) an error; (2) that is plain; and (3) that affects substantial rights.” Phelps, 536 F.3d at 865. If a defendant makes that showing, “an appellate court may exercise its discretion to correct a forfeited error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (quoting Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997))." }, { "docid": "15657114", "title": "", "text": "F.3d 68, 76 (1st Cir.2005)). Because Paz failed to preserve for appellate review any challenge to the guidelines, we apply the plain-error test set forth in United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Pirani, 406 F.3d at 549-50. The test has been stated as follows: before an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. at 550 (quoting Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)). As in Pirani, the first two factors are satisfied because the district court erred in applying the guidelines in a mandatory fashion, and that error is plain at the time of appellate review. See Pirani, 406 F.3d at 550. To satisfy the third Olano factor, Paz must prove by a preponderance of the evidence that there exists “a reasonable probability that he would have received a more favorable sentence with the Booker error eliminated by making the Guidelines advisory.” Id. at 551. Paz cannot demonstrate that there exists. a reasonable probability that the district court would have imposed a more favorable sentence under an advisory guidelines system. First, the district court, in its discretion, chose to depart upward because Paz’s criminal history category substantially under-represented the seriousness of his criminal history and the likelihood he would commit other crimes. See United States v. Sayre, 400 F.3d 599, 601 (8th Cir.2005) (recognizing the futility of remanding a sentence for the application of advisory guidelines where the district court had previously departed upward). Second, not only did the district court depart from a guidelines range of 37 to 46 months to a range of 46 to 57 months, but it also sentenced Paz to the highest sentence available in that range, 57 months. We conclude, therefore, that" }, { "docid": "9902594", "title": "", "text": "time by way of a Rule 28(j) letter, we review the claim for plain error. See Fed.R.Crim.P. 52(b); United States v. Pirani, 406 F.3d 543, 549-50 (8th Cir.2005) (en banc). Because the district court determined the applicable sentencing range pursuant to the career-offender guideline, which applies based on the defendant’s prior convictions, this case involves no violation of the Sixth Amendment. See Booker, 125 S.Ct. at 756 (“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 a jury beyond a reasonable doubt.”); United States v. Marcussen, 403 F.3d 982, 984 (8th Cir. 2005). In light of Booker, however, the district court’s imposition of sentence did involve non-constitutional error, because the district court applied the mandatory guidelines, while Booker subsequently held that the guidelines are only advisory. The question presented by the supplemental filing, therefore, is whether the district court’s application of a mandatory sentencing guideline range to Martinez-Noriega is a plain error warranting relief. As our court reiterated in Pirani, plain error review is governed by the four-part test set forth in United States v. Olano, 507 U.S. 725, 732-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). See also Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). In order to warrant correction, there must be an error, that is plain, that affected the defendant’s substantial rights, and that “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Johnson, 520 U.S. at 466-67, 117 S.Ct. 1544. The first two factors— an error that is plain — are satisfied here. See Pirani, 406 F.3d at 550. However, to demonstrate that the error affected his substantial rights, the defendant also must demonstrate that there was “a ‘reasonable probability,’ based on the appellate record as a whole, that but for the error he would have received a more favorable sentence.” Id. at 552. We do not believe that Martinez-Noriega has demonstrated such a probability." }, { "docid": "19734554", "title": "", "text": "States v. Baugham, 449 F.3d 167, 170 (D.C.Cir.2006) (“|T]his court in any event has the power to notice a plain error sua sponte” (citing Silber, 370 U.S. at 718, 82 S.Ct. 1287)); United States v. Moyer, 282 F.3d 1311, 1313, 1317-19 (10th Cir.2002) (recognizing the court had the power to correct the imposition of an illegal sentence sua sponte). As we have noted above, fairness concerns run both ways. See United States v. Cotton, 535 U.S. 625, 634, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (“The real threat then to the 'fairness, integrity, and public reputation of judicial proceedings' would be if respondents, despite the overwhelming and uncontroverted evidence that they were involved in a vast drug conspiracy, were to receive a sentence prescribed for those committing less substantial drug offenses because of an error that was never objected to at trial.”). But see United States v. Rivera, 411 F.3d 864, 867 (7th Cir.) (refusing to correct sentence that was below the statutory mandatory minimum because \"[b]y deciding not to take a cross-appeal, the United States has ensured that [the defendant's] sentence cannot be increased”), cert. denied, - U.S. -, 126 S.Ct. 493, 163 L.Ed.2d 373 (2005). .We also note the district court erred in concluding that, without a jury finding (citing United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)), it could not make a finding with respect to whether Greenlaw possessed a firearm in connection with Count 1. The district court said: \"I just don’t think under Booker I can make that determination.” Contrary to the district court’s assertion, the district court can make that determination under Booker when calculating an advisory Guideline range. See United States v. Sandoval-Rodriguez, 452 F.3d 984, 990-91 (8th Cir.2006). The government objected to this Booker error, but did not appeal the error. Under plain error review, an error must be plain, affect substantial rights, and seriously affect the fairness, integrity, or public reputation of judicial proceedings. Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); United States v. Pirani, 406 F.3d" }, { "docid": "19734555", "title": "", "text": "States has ensured that [the defendant's] sentence cannot be increased”), cert. denied, - U.S. -, 126 S.Ct. 493, 163 L.Ed.2d 373 (2005). .We also note the district court erred in concluding that, without a jury finding (citing United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)), it could not make a finding with respect to whether Greenlaw possessed a firearm in connection with Count 1. The district court said: \"I just don’t think under Booker I can make that determination.” Contrary to the district court’s assertion, the district court can make that determination under Booker when calculating an advisory Guideline range. See United States v. Sandoval-Rodriguez, 452 F.3d 984, 990-91 (8th Cir.2006). The government objected to this Booker error, but did not appeal the error. Under plain error review, an error must be plain, affect substantial rights, and seriously affect the fairness, integrity, or public reputation of judicial proceedings. Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); United States v. Pirani, 406 F.3d 543, 550 (8th Cir.) (en banc), cert. denied, - U.S. -, 126 S.Ct. 266, 163 L.Ed.2d 239 (2005). The § 924(c)(1)(C) error we recognize today as plain is triggered primarily because the error violates a Congressional mandate. This Booker error does not. Based on the unique circumstances of this sentencing, we conclude this Booker error does not affect substantial rights or seriously affect the fairness, integrity or public reputation of the judicial proceedings. The district court treated the Sentencing Guidelines as advisory and, in a separate exercise of our plain error review discretion, we determine \"the effect of the error on the result in the district court is uncertain or indeterminate — where we would have to speculate” as to how the error affected the substantial rights of the parties. See Pirani, 406 F.3d at 553 (quoting United States v. Rodriguez, 398 F.3d 1291, 1301 (11th Cir.), cert. denied, 545 U.S. 1127, 125 S.Ct. 2935, 162 L.Ed.2d 866 (2005)). Therefore, exercising our Rule 52(b) power \"sparingly,” we do not find the district court's Booker error" }, { "docid": "23250430", "title": "", "text": "296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We held the motion in abeyance pending United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We now take this motion with the case. In light of Booker and our recent decision in United States v. Pirani, 406 F.3d 543 (8th Cir.2005), we deny the motion because Johnson cannot carry his burden of showing prejudice necessary to be entitled to plain-error relief. While Johnson objected to the district court’s finding that tampering by operation qualified as a violent felony under § 924(e), he did not object to his sentence on the basis of Apprendi, Blakely, or the constitutionality of the federal sentencing guidelines. See Pirani, 406 F.3d at 549. As a result, Johnson is only entitled to plain-error review. Id. We apply the plain-error test set forth in United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). The test has been stated as follows: before an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Pirani, 406 F.3d at 550 (quoting Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)). As in Pirani, the first two factors are satisfied because the district court committed error in applying the guidelines in a mandatory fashion, and the error is plain at the time of appellate review. See Pirani, 406 F.3d at 550. To satisfy the third Olano factor, Johnson must prove by a preponderance of the evidence that there exists “a reasonable probability that he would have received a more favorable sentence with the Booker error eliminated by making the Guidelines advisory.” Id. at 551. We conclude that Johnson cannot demonstrate a reasonable probability that the district court would have imposed a more favorable sentence" }, { "docid": "3041270", "title": "", "text": "the government’s response, the district court stated that to reach the age of 24 and manage to receive ten prior convictions, the balance of which involved violent conduct, I cannot find under the totality of the circumstances that the presumptively reasonable guidelines in this case are not reasonable. The statutory purposes of sentencing, that is, deterrence, protecting the public, incapacitation, and punishment are served by a guideline sentence of 151 months. Reviewing a sentence, this court first determines whether the district court committed a 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 v. United States, — U.S. -, -, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). If a defendant fails to object timely to a procedural sentencing error, the error is forfeited and may only be reviewed for plain error. See United States v. Pirani, 406 F.3d 543, 549 (8th Cir.2005) (en banc); United States v. Guarino, 517 F.3d 1067, 1068-69 (8th Cir.2008). Under plain error review, the defendant must show: (1) an error; (2) that is plain; and (3) that affects substantial rights. Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); Fed. R.Crim.P. 52(b). If these conditions are met, an appellate court may exercise its discretion to correct a forfeited error only if it “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Johnson, 520 U.S. at 467, 117 S.Ct. 1544, quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Vaughn asserts two procedural errors. He objected to neither in the district court. Plain error review applies. See Pirani 406 F.3d at 549; Guarino, 517 F.3d at 1068-69. First, he argues that the district court applied a presumption of reasonableness to the guidelines, in violation of Rita v. United States, — U.S.-,-, 127 S.Ct. 2456, 2465," }, { "docid": "22584943", "title": "", "text": "this request, reducing the sentence to 78 months. Phelps appeals. II. Reviewing a sentence, this court first determines whether the district court committed a 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 v. United States, — U.S.-, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). If a defendant fails to timely object to a procedural sentencing error, the error is forfeited and may only be reviewed for plain error. See United States v. Pirani, 406 F.3d 543, 549 (8th Cir.2005) (en banc); United States v. Alvizo-Trujillo, 521 F.3d 1015, 1018 (8th Cir.2008). Under plain error review, the defendant must show: (1) an error; (2) that is plain; and (3) that affects substantial rights. Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); Fed. R.Crim.P. 52(b). If these conditions are met, an appellate court may exercise its discretion to correct a forfeited error only if it “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Johnson, 520 U.S. at 467, 117 S.Ct. 1544, quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). A. Phelps asserts several procedural errors. First, that the district court applied a presumption of reasonableness to the guidelines, in violation of Rita v. United States, — U.S. -, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). See Rita, 127 S.Ct. at 2465 (“[T]he sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply.”). Phelps did not object in the district court, so plain error review applies. Pirani, 406 F.3d at 549; Alvizo-Trujillo, 521 F.3d at 1018. Phelps highlights the following statement by the district court: “I am just not convinced that doing anything less than the presumed guideline provision would do anything for them let alone to society or ultimately for" }, { "docid": "3874230", "title": "", "text": "States v. Antonakopoulos, 399 F.3d 68, 76 (1st Cir.2005)). May concedes that plain error review is appropriate. Id. The plain error standard requires “(1) error, (2) that is plain, and (3) that affects substantial rights.” Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). If those conditions are met, an appellate court may exercise its discretion to notice a forfeited error, but only if “(4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. It is the defendant’s burden to prove plain error occurred. Pirani, 406 F.3d at 550. The defendant must first show that an error occurred that is plainly contrary to the law at the time of appeal. Id.; see Johnson, 520 U.S. at 468, 117 S.Ct. 1544 (“[W]here the law at the time of trial was settled and clearly contrary to the law at the time of appeal — it is enough that an error be ‘plain’ at the time of appellate consideration.”). With respect to imposing a sentence under a mandatory Guidelines application, the district court did commit a plain error. Pirani, 406 F.3d at 550. However, May’s argument is that the district court improperly departed from the sentence prescribed by the Guidelines. A departure is not mandated by the Guidelines, but is within the court’s discretion. It is unclear whether the decision to depart, alone, is a decision made under a “mandatory Guidelines regime.” Id. at 551. Assuming, arguendo, that May could establish a Booker error, he still could not prevail under plain error review. Even if the district court committed plain error, May has not established that the error affects his substantial rights. May has the burden of showing, with reasonable probability, that he would have received a more favorable sentence had the district court considered the Guidelines advisory. Id. He cannot meet this burden. In Pirani, the district court sentenced him at the bottom of the Guidelines range, avoided enhancements that would make his sentence “too high,” and allowed Pirani to serve half of his sentence in home confinement rather than in" }, { "docid": "5393791", "title": "", "text": "err in its application of § 2S1.1(a)(2), and the Government’s cross-appeal on this issue is, therefore, denied. b. Blakely I Booker Jessica argues that her sentence, pronounced under a mandatory application of the guidelines, is erroneous under United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Before the district court, Jessica did not argue Apprendi or Blakely error with respect to her sentencing or that the guidelines were unconstitutional. Therefore, we review her sentence for plain error. United States v. Pirani, 406 F.3d 543, 549 (8th Cir.2005) (en banc). We apply the plain-error test as set forth in United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). The test has been stated as follows: [B]efore an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Pirani, 406 F.3d at 550 (quoting Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)) (internal quotation omitted). As in Pirani, the first two factors are satisfied because the district court committed error in applying the guidelines in a mandatory fashion, and the error is plain at the time of appellate consideration. See Pirani, 406 F.3d at 550. To satisfy the third Olano factor, Jessica must demonstrate “a reasonable probability that [she] would have received a more favorable sentence with the Booker error eliminated by making the Guidelines advisory.” Id. at 551. We have reviewed the record, and we conclude that there is nothing to indicate a reasonable probability that Jessica would have received a more favorable sentence but for the Booker error. Accordingly, we affirm Jessica’s sentence. 2. Celia As with Jessica, the district court did not aggregate each layer of Celia’s money-laundering offense to determine the value of the laundered funds attributable to her" }, { "docid": "8576125", "title": "", "text": "a different set for each of the four separate incidents — and in trial preparation. The district court denied Defendant’s motion. Finding the appropriate offense level to be thirty (30), and finding a criminal history category of IV, the court determined that the appropriate guideline range was 135 to 168 months. The court sentenced Defendant to 151 months, stating: His term reflects the middle of the guideline range of 135 to 168 months. It is felt that the sentence will afford adequate deterrence and will provide just punishment. Sentencing Tr. at 18, J.A. 57. Defendant Smith timely appealed. II. Analysis A. Booker Analysis Smith asserts, for the first time on direct appeal, that his sentence should be vacated and the case remanded pursuant to the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We may review Smith’s Sixth Amendment claim despite the fact that the Supreme Court did not issue its decision until after the district court had already determined Smith’s sentence. United States v. Oliver, 397 F.3d 369, 377 (6th Cir.2005) (citing Booker, 125 S.Ct. at 769 (noting that the case’s holdings apply to all cases pending on direct review)). Because Smith failed to raise a Booker challenge to his sentence in district court, however, we can reverse only on a showing of “plain error” by the district court. Oliver, 397 F.3d at 375 (6th Cir. 2005). Under the plain error test, “before an appellate court can correct an error not raised at trial, there must be (1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affects substantial rights.’ If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error ‘seriously affects the fairness, integrity, or public reputation of judicial proceedings.’ ” Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 1548-49, 137 L.Ed.2d 718 (1997) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). In Booker, the Supreme Court made clear that a Sixth Amendment" }, { "docid": "18148199", "title": "", "text": "403 (2004) (declaring Washington’s sentencing system unconstitutional), Agboola argues the district court erred in increasing his base offense level based on evidence that was not charged in the indictment, found by a jury, nor admitted by him. Agboola also claims the district court erred by assessing a two-level enhancement for obstruction of justice and a ten-level enhancement for the amount of loss caused by his fraud. During the pendency of this appeal, the Supreme Court decided United States v. Booker, — U.S. -, -, 125 S.Ct. 738, 749-57, 160 L.Ed.2d 621 (2005), which applied the holding of Blakely to the Guidelines. The Booker Court rendered the Guidelines “effectively advisory” by excising two provisions of the Sentencing Reform Act of 1984. Id. at 756-57. Under the advisory Guidelines system, the district court must “consider Guidelines ranges,” but it is permitted “to tailor the sentence in light of other statutory concerns as well.” Id. at 757 (citing 18 U.S.C. § 3553(a)). Courts of appeals now review the ultimate sentence imposed for unreasonableness. Id. at 765. Agboola did not assert a Sixth Amendment objection at his sentencing hearing. Thus, we review his sentence for plain error, United States v. Pirani, 406 F.3d 543, 549 (8th Cir.2005) (en banc), a demanding standard not easily met, United States v. Rodriguez-Ceballos, 407 F.3d 937, 940 (8th Cir.2005) (citing United States v. Dominguez Benitez, 542 U.S. 74, 124 S.Ct. 2333, 2340, 159 L.Ed.2d 157 (2004)). Under Federal Rule of Criminal Procedure 52(b), “a court of appeals [has] a limited power to correct errors that were forfeited because not timely raised in district court.” United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). To show plain error, Agboola must demonstrate “(1) error, (2) that is plain, and (3) that affect[s] substantial rights.” Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (internal quotations omitted) (alteration in original). If the defendant meets these three conditions, our court has discretion to remand for resentencing “if(4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.”" }, { "docid": "3874229", "title": "", "text": "May’s need for a substance abuse treatment program. See § 3553(a)(1), (2)(A), & (2)(D). Finally, the district court considered the need for the sentence it imposed to afford adequate deterrence and to protect the public from May committing further crimes. See § 3553(a)(1)(B), (C). The district court’s departure and May’s resulting sentence were not unreasonable in light of the section 3553(a) factors. II. May argues in a supplemental brief that the district court’s sentence violates his constitutional rights because it was based in part on judicial fact-finding. May filed his supplemental brief after the Supreme Court issued its decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), but before United States v. Booker, — U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). May did not raise the issue in any manner before the district court. A Booker argument is not preserved unless “the defendant below argued Apprendi or Blakely error or that the Guidelines were unconstitutional.” United States v. Pirani, 406 F.3d 543, 551 (8th Cir.2005) (quoting United States v. Antonakopoulos, 399 F.3d 68, 76 (1st Cir.2005)). May concedes that plain error review is appropriate. Id. The plain error standard requires “(1) error, (2) that is plain, and (3) that affects substantial rights.” Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). If those conditions are met, an appellate court may exercise its discretion to notice a forfeited error, but only if “(4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. It is the defendant’s burden to prove plain error occurred. Pirani, 406 F.3d at 550. The defendant must first show that an error occurred that is plainly contrary to the law at the time of appeal. Id.; see Johnson, 520 U.S. at 468, 117 S.Ct. 1544 (“[W]here the law at the time of trial was settled and clearly contrary to the law at the time of appeal — it is enough that an error be ‘plain’ at the time of appellate consideration.”). With respect to imposing a sentence under a" }, { "docid": "23622275", "title": "", "text": "court,” and “even though Yanez-Rodriguez’s plea agreement contained a waiver of the right to appeal his sentence, an appellate waiver is not enforceable if -the Government breaches its obligations under the plea agreement”) (quotations omitted); United States v. Gonzalez, 16 F.3d 985, 990 (9th Cir.1993) (permitting defendant to appeal, despite waiver of appellate rights, after accepting defendant’s argument, raised for the first time on appeal, that the government breached the plea agreement). Other circuits have, in effect, adopted similar approaches. See United States v. Cruz, 300 Fed.Appx. 686, 688 (11th Cir.2008) (per curiam) (unpublished) (enforcing waiver of appellate rights on two Guidelines claims, but applying plain error review to the merits of appellant’s breaehof-plea-agreément argument, which was not raised with the. district court); United States v. Powell, 299 Fed.Appx. 220, 221-22 (4th Cir.2008) (per curiam) (unpublished) (enforcing waiver of appellate rights on the merits of appellant’s sentencing claim, but reviewing for plain error the argument, raised first on appeal, that the government breached the plea agreement at sentencing). III. Having found that Lovelace may bring this appeal if he shows plain error under Rule 52(b), this court turns to the merits. Lovelace contends that the government breached the plea agreement by advocating a base offense level of 24. “Issues concerning the interpretation and enforce ment of a plea agreement are reviewed de novo.” United States v. Paton, 535 F.3d 829, 835 (8th Cir.2008). Because Lovelace did not object at sentencing, this court reviews for plain error. Fed.R.Crim.P. 52(b). See United States v. Granados, 168 F.3d 343, 345-46 (8th Cir.1999) (per curiam) (finding sua sponte, under plain error review, that the government breached a plea agreement). “[B]efore we can correct an error not raised at trial, ‘there must be (1) error, (2) that is plain, and (3) that affects substantial rights.’” United States v. Keller, 413 F.3d 706, 710 (8th Cir.2005), quoting Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). “If all three conditions are met, we may remedy the error only if it ‘seriously affects the fairness, integrity, or public reputation of judicial" }, { "docid": "15490822", "title": "", "text": "court violated Booker by en hancing his sentence based on judicial fact finding, is unavailing. The district court found facts supporting the obstruction of justice enhancement based on a preponderance of the evidence, but such judicial fact finding is not necessarily unconstitutional under Booker. See United States v. Keller, 413 F.3d 706, 708-09 (8th Cir.2005). “Nothing in Booker suggests that sentencing judges are required to find sentence-enhancing facts beyond a reasonable doubt under the advisory Guidelines regime.” United States v. Pirani, 406 F.3d 543, 551 n. 4 (8th Cir.2005) (en banc). Rather, as discussed below, the error is that the district court applied its fact finding under a mandatory Guidelines system. Because Galaviz-Luna did not object to his sentence on Sixth Amendment grounds in the district court, we review for plain error. See Fed.R.Crim.P. 52(b); Pi-rani, 406 F.3d at 549-50. Under plain error review, we may not correct an error not raised in the district court unless there is “(1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. at 550 (quoting Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)). Insofar as the district court did not specifically ask and instruct the jury to find beyond a reasonable doubt whether Galaviz-Luna committed perjury, and thus obstructed justice, the district court’s imposition of this enhancement under a mandatory Guidelines regime was an error that was plain under the Sixth Amendment. See United States v. Ziesman, 409 F.3d 941, 957 (8th Cir.2005) (concluding “the district court committed error in applying the Guidelines in a mandatory fashion based on judge-found facts, and the error is plain at the time of appellate consideration”). Turning to the third prong of plain-error review, we ask whether the error affects substantial rights, which “means that the error must have been prejudicial: It must have affected the outcome of the district court" } ]

[ { "docid": "22545529", "title": "", "text": "and making known to plaintiffs and others in like position the foregoing program. Under these allegations, liberally construed, the respondents are entitled to prove that the real intent of the conspirators was not to invoke the processes of the administrative agencies and courts, but to discourage and ultimately to prevent the respondents from invoking those processes. Such an intent would make the conspiracy “an attempt to interfere directly with the business relationships of a competitor and the application of the Sherman Act would be justified.” Eastern Railroad Conference v. Noerr Motor Freight, 365 U. S., at 144. It is only on this basis that I concur in the judgment of the Court. Eastern Railroad Conference v. Noerr Motor Freight, 365 U. S. 127. See also United Mine Workers v. Pennington, 381 U. S. 657, 669-671. This conclusion, the Court held, was a corollary of our decisions in United States v. Rock Royal Co-operative, 307 U. S. 533, and Parker v. Brown, 317 U. S. 341, holding that when a monopoly or restraint of trade is the result of valid governmental action, there cannot be an antitrust violation. In Noerr, the Court emphasized that the defendants’ “unethical” conduct did not affect their antitrust immunity for jointly exerting pressure on the Legislative and Executive Branches, 365 U. S., at 141. See, however, Walker Process Equipment v. Food Machinery & Chemical Corp., 382 U. S. 172." } ]

[ { "docid": "19408729", "title": "", "text": "claims may sufficiently set itself apart from mine-run cases to warrant a fee award. Cf. Noxell, 771 F.2d, at 526 (\"[W]e think it fair to assume that Congress did not intend rigidly to limit recovery of fees by a [Lanham Act] defendant to the rare case in which a court finds that the plaintiff 'acted in bad faith, vexatiously, wantonly, or for oppressive reasons'.... Something less than 'bad faith,' we believe, suffices to mark a case as 'exceptional' \"). ICON argues that the dual requirement of \"subjective bad faith\" and \"objective baselessness\" follows from this Court's decision in Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993) ( PRE ), which involved an exception to the Noerr - Pennington doctrine of antitrust law. It does not. Under the Noerr -Pennington doctrine-established by Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961), and United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965) -defendants are immune from antitrust liability for engaging in conduct (including litigation) aimed at influencing decisionmaking by the government. PRE, 508 U.S., at 56, 113 S.Ct. 1920. But under a \"sham exception\" to this doctrine, \"activity 'ostensibly directed toward influencing governmental action' does not qualify for Noerr immunity if it 'is a mere sham to cover ... an attempt to interfere directly with the business relationships of a competitor.' \" Id., at 51, 113 S.Ct. 1920. In PRE , we held that to qualify as a \"sham,\" a \"lawsuit must be objectively baseless\" and must \" concea[l] 'an attempt to interfere directly with the business relationships of a competitor....' \" Id., at 60-61, 113 S.Ct. 1920 (emphasis deleted). In other words, the plaintiff must have brought baseless claims in an attempt to thwart competition (i.e., in bad faith). In Brooks Furniture , the Federal Circuit imported the PRE standard into § 285. See 393 F.3d, at 1381. But the PRE standard finds no roots in the text of § 285, and it" }, { "docid": "14152874", "title": "", "text": "Antitrust Counterclaim is devoid of factual allega tions demonstrating a willful maintenance of monopoly power or a specific intent to exclude competition. Each of these subsidiary allegations is addressed seriatim. (1) Anticompetitive Litigation Without offering examples, Sequential broadly alleged Syncsort maintained control of the market through the “bringing [of] anti-competitive litigation.” See Answer and Counterclaim at ¶ 77. It appears the prosecution of the instant lawsuit by Syncsort is, however, immunized from antitrust liability. Persons who associate together to petition the government for redress are generally immune from antitrust liability. See Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464, reh’g denied, 365 U.S. 875, 81 S.Ct. 899, 5 L.Ed.2d 864 (1961); United Mine Workers of America v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965)(the “Noerr-Pennington doctrine”). The Noerr-Pennington doctrine has been extended to petitions to the courts for redress. See California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972). Where the complaint is nothing more than a “sham,” however, the petitioner is not entitled to antitrust immunity. See id. at 512, 92 S.Ct. 609. The “sham” exception to the Noerr-Pennington doctrine has been defined as follows: First, the lawsuit must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits. If an objective litigant could conclude that the suit is reasonably calculated to elicit a favorable outcome, the suit is immunized under Noerr, and an antitrust claim premised on the sham exception must fail. Only if challenged litigation is objectively merit-less may a court examine the litigant’s subjective motivation. Under this second part of our definition of sham, the court should focus on whether the baseless lawsuit conceals ‘an attempt to interfere directly with the business relationships of a competitor,’ through the ‘use [of] the governmental process — as opposed to the outcome of that process — as an anticompetitive weapon. Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60-61, 113 S.Ct. 1920, 123 L.Ed.2d" }, { "docid": "12014315", "title": "", "text": "S.Ct. 523, 5 L.Ed.2d 464 (1961) (“Noerr”); United Mine Workers of Am. v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965) (“Pennington ”). The Supreme Court has explained, “In light of the government’s ‘power to act in [its] representative capacity’ and ‘to take actions ... that operate to restrain trade,’ we reasoned that the Sherman Act does not punish ‘political activity’ through which ‘the people ... freely inform the government of their wishes.’ ” Prof'l Real Estate Investors, Inc. v. Columbia Pictures Indus., 508 U.S. 49, 56, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993) (all alterations in original) (quoting Noerr, 365 U.S. at 137, 81 S.Ct. 523). Noerr-Pennington originally immunized only petitions to legislative officials, but the Supreme Court extended Noerr-Pennington immunity to petitions to administrative agencies and courts. Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972). An entity loses Noerr-Pennington immunity from anti-trust liability if its conduct falls within the “sham” exception to the doctrine. That is, “[t]here may be situations in which a publicity campaign, ostensibly directed toward influencing governmental action, is a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor and the application of the Sherman Act would be justified.” Noerr, 365 U.S. at 144, 81 S.Ct. 523. The Court has elaborated: The “sham” exception to Noerr encompasses situations in which persons use the governmental process — as opposed to the outcome of that process — as an anticompetitive weapon. A classic example is the filing of frivolous objections to the license application of a competitor, with no expectation of achieving de nial of the license but simply in order to impose expense and delay. A “sham” situation involves a defendant whose activities are not genuinely aimed at procuring favorable government action at all, not one who genuinely seeks to achieve his governmental result, but does so through improper means. City of Columbia v. Omni Outdoor Adver., Inc., 499 U.S. 365, 380, 111 S.Ct. 1344, 113 L.Ed.2d 382 (1991) (citations" }, { "docid": "2908570", "title": "", "text": "prohibit two or more persons from associating together in an attempt to persuade the legislature or the executive to take particular action with respect to a law that would produce a restraint or a monopoly.” Id. at 136, 81 S.Ct. at 529. In United Mine Workers of Am. v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965), the Court confirmed that “Noerr shields from the Sherman Act a concerted effort to influence public officials regardless of intent or purpose.” Id. at 670, 85 S.Ct. at 1593. And in Cal. Motor Transport Co. v. Trucking Unltd., 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1971), the Court expanded the Noerr-Pennington doctrine, writing that “[t]he same philosophy governs the approach of citizens or groups of them to administrative agencies (which are both creatures of the legislature, and arms of the executive) and to courts, the third branch of Government.” Id. at 510, 92 S.Ct. at 611-12. “The right to access to the courts is indeed but one aspect of the right to petition.” Id. “Noerr, however, withheld immunity from ‘sham’ activities because ‘application of the Sherman Act would be justified’ when petitioning activity, ‘ostensibly directed toward influencing governmental action, is a mere sham to cover ... an attempt to interfere directly with the business relationships of a competitor.’ ” Professional Real Estate Investors (“PRE”), Inc., v. Columbia Pictures Indus., Inc., 508 U.S. 49, 56, 113 S.Ct. 1920, 1926, 123 L.Ed.2d 611 (1993). In PRE, the Court outlined a two-part definition for sham litigation: First the lawsuit must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits. If an objective litigant could conclude that the suit is reasonably calculated to elicit a favorable outcome, the suit is immunized under Noerr, and an antitrust' claim premised on the sham exception must fail. Only if the challenged litigation is objectively meritless may a court examine the litigant’s subjective motivation. Under this second part of our definition of sham, the court should focus on whether the baseless lawsuit conceals “an attempt to interfere directly" }, { "docid": "18806031", "title": "", "text": "of defending such suits alleges a cognizable antitrust injury. Plaintiff must show that the injury for which it seeks to recover is “the type the antitrust laws were intended to prevent” and “flows from that which makes defendant’s acts unlawful.” In a suit alleging antitrust injury based upon a bad faith prosecution theory it is obvious that the costs incurred in defense of the prior patent infringement suit are an injury which “flows” from the antitrust wrong. Handgards I, 601 F.2d at 997. Because of the confusion surrounding the meaning of “sham” litigation, the Supreme Court in Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc.,—U.S.-, 113 S.Ct. 1920, 123 L.Edüd 611 (1993) set out a two-part definition of “sham” litigation for purposes of determining whether or not an antitrust defendant is entitled to immunity from antitrust litigation under the Noerr-Pennington doctrine. The Noerr-Pennington doctrine, which has its roots in the First Amendment, ensures that those who petition the government in good faith for redress are generally immune from antitrust liability. Id. at-, 113 S.Ct. at 1926; United Mine Workers of America v. Pennington, 381 U.S. 657, 670, 85 S.Ct. 1585, 1593, 14 L.Ed.2d 626 (1965); Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 139-40, 81 S.Ct. 523, 530-31, 5 L.Ed.2d 464 (1961); United States Gypsum Co. v. National Gypsum Co., 1994 WL 14648, *1 (N.D.Ill. January 20, 1994); TRW Financial Systems, Inc. v. UNISYS Carp., 835 F.Supp. 994, 1011 (E.D.Mich.1993). First, the lawsuit must be objectively baseless in the sense that no reasonable litigant would realistically expect success on the merits. If an objective litigant could conclude that the suit is reasonably calculated to elicit a favorable outcome, the suit is immunized under Noerr, and an antitrust claim premised on the sham exception must fail ... Under the second part of our definition of sham, the court should focus on whether the baseless lawsuit conceals an attempt to interfere directly with the business relationships of a competitor through the use of the governmental process — as opposed to the outcome of that process —" }, { "docid": "22474159", "title": "", "text": "that party.” Id. The Noerr-Pennington doctrine provides that “[t]hose who petition government for redress are generally immune from antitrust liability.” Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49, 56, 113 S.Ct. 1920, 1926, 123 L.Ed.2d 611 (1993). This general rule encompasses private actions that “attempt to persuade the legislature or the executive to take particular action with respect to a law that would produce a restraint or a monopoly,” id. (citing Eastern R.R. Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127, 136, 81 S.Ct. 523, 529, 5 L.Ed.2d 464 (1961)), as well as “‘the approach of citizens ... to administrative agencies ... and to courts,’ ” id. (citing California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 611-12, 30 L.Ed.2d 642 (1972)). Noerr-Pennington antitrust immunity does not apply, however, when the activity “is a mere sham to cover ... an attempt to interfere directly with the business relationships of a competitor.” Eastern R.R. Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127, 144, 81 S.Ct. 523, 533, 5 L.Ed.2d 464 (1961). The Supreme Court’s latest articulation of the parameters of the “sham” litigation exception to Noerr-Pennington immunity is contained in its Professional Real Estate Investors decision. There, the Court held that “an objectively reasonable effort to litigate cannot be sham regardless of subjective intent.” Professional Real Estate Investors, 508 U.S. at 60, 113 S.Ct. at 1928. The Court outlined a two-part definition of “sham” litigation: First, the lawsuit must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits. If an objective litigant could conclude that the suit is reasonably calculated to elicit a favorable outcome, the suit is immunized under Noerr, and an antitrust claim premised on the sham exception must fail. Only if challenged litigation is objectively baseless may a court examine the litigant’s subjective motivation. Id. at 60, 113 S.Ct. at 1928 (emphasis added). In formulating the standard, the Court made clear that in the first step, the litigant’s subjective purpose is irrelevant, explaining that “the legality" }, { "docid": "2750211", "title": "", "text": "Kobe, 198 F.2d at 424-425; Betmar Hats, 116 F.2d at 957. British Gas contends that there is no generic “bad faith” theory of antitrust liability for infringement notices and threats to sue, arguing that conduct falling short of actual litigation is still covered by the Noerr-Pennington doctrine, which provides general immunity from antitrust liability under the Sherman Act to persons pursuing relief through legislative .action or influencing government officials, as well as administrative agencies and the courts, unless the activities merely a sham. See Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961); Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626, (1965); California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972). “Under the Noerr-Pennington doctrine, therefore, ‘the federal- antitrust laws do not regulate the conduct of private individuals in seeking anti-competitive action from the government’ ” or courts. McGuire Oil Co. v. Mapco, Inc., 958 F.2d 1552, 1558 (11th Cir.1992), quoting City of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 379, 111 S.Ct. 1344, 1354, 113 L.Ed.2d 382 (1991). In order to show that an antitrust defendant’s lawsuit is a sham under the Noerr-Pennington doctrine and thus not entitled to immunity, an antitrust plaintiff first must show that the defendant’s lawsuit is “objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits. If an objective litigant could conclude that the suit is reasonably calculated to elicit a favorable outcome, the suit is immunized under Noerr, and an antitrust claim premised on the sham exception must fail.” Professional Real Estate Investors v. Columbia Pictures Industries, Inc., 508 U.S. 49, 60, 113 S.Ct. 1920, 1928, 123 L.Ed.2d 611 (1993). If the lawsuit is objectively baseless, the antitrust plaintiff must show additionally that the defendant’s subjective motivation was anticompetitive, such that the defendant’s meritless lawsuit “conceals an attempt to interfere directly with the busi ness relationships of a competitor through the use of the governmental process — as opposed to the outcome" }, { "docid": "18354361", "title": "", "text": "submissions, the Court denies Roche/Hoffmann’s motion to so amend. With respect to the sham litigation claim, this Court is not persuaded that Amgen’s decision to initiate the International Trade Commission (“ITC”) action was objectively baseless. Roche/Hoff-mann pled that Amgen’s ITC action was intended to harm Roche/Hoffmann through the process rather than through the outcome of ITC’s action, allegations that satisfy the two prerequisites for sham litigation under the established law. Nevertheless, Amgen contends that a party that petitions the government in good faith for redress is generally immune from antitrust liability under the Noerr-Pennington doctrine, which protects the right to petition to governmental bodies. See United Mine Workers of Am. v. Pennington, 381 U.S. 657, 669-72, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965); Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 137-44, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961). Courts have established a two-part pleading requirement for overcoming Noerr-Pennington immunity: (1) facts sufficient to show that the challenged petitioning activity is “objectively baseless” in the sense that “no reasonable litigant could realistically expect success on the merits”; and (2) facts showing that the petitioner was subjectively motivated by an intent to use the act of petitioning — as opposed to the legislative or adjudicated outcome of the petitioning process — to interfere directly with the business relationships of a competitor. Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60-61, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993); In re Relafen Antitrust Litigation, 346 F.Supp.2d 349, 359-60 (D.Mass.2004). Roche/Hoffmann has failed to satisfy the first prong. Amgen has sufficiently argued that when it filed its petition with the ITC, it reasonably believed that Roche/Hoffmann had already transgressed, or would imminently transgress, whatever exemption its infringing imports previously enjoyed from liability for violation of 19 U.S.C. § 1837. Amgen’s Opp’n to Roche’s Mot. to Amend Answer and Counterclaim [Doc. No. 270], at 3-4. As it was, Amgen’s petition led to an independent investigation by the ITC. Renee Du-bord Brown Decl. [Doc. No. 152], Ex. 1. The fact that the ITC later reached a decision" }, { "docid": "9734417", "title": "", "text": "claims because it is dispositive of other issues. CA argues that both of these claims are barred by the Noerr-Pennington doctrine. See United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965); Eastman R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961). Under this doctrine, “[those who petition government for redress are generally immune from antitrust liability.” Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., — U.S. at-, 113 S.Ct. at 1926; see also Oberndorf v. City & County of Denver, 900 F.2d 1434, 1440 (10th Cir.), cert. denied, 498 U.S. 845, 111 S.Ct. 129, 112 L.Ed.2d 97 (1990). The right to petition government includes within its scope litigating activity. See California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 611, 30 L.Ed.2d 642 (1972). In the adjudicatory setting, the Noerr-Pennington doctrine protects a litigant from antitrust liability unless his opponent can establish that the litigant’s case is a sham. To do this, the opponent must first show that the lawsuit is “objectively baseless in the sense that no reasonable litigant could reasonably expect success on the merits.” Professional Real Estate Investors, — U.S. at-, 113 S.Ct. at 1928. If opponent succeeds in this first step, then and only then may the court examine the litigant’s subjective motivation to determine whether the “baseless lawsuit conceals ‘an attempt to interfere directly with the business relationships of a competitor.’ ” Id. (citing Noerr, 365 U.S. at 144, 81 S.Ct. at 533. As AFW notes in its response, CA glosses over an important threshold question: whether the Noerr-Pennington doctrine bars not only federal antitrust claims under the Sherman Act, but also tort claims under state law, such as the unfair competition and frivolous lawsuit claims at issue here. CA cites one case in its opening brief, Aydin Corporation v. Loral Corporation, in which the Ninth Circuit affirmed the dismissal of a federal antitrust claim and two pendent state law claims, including one for unfair competition. See 718 F.2d 897 (9th Cir.1983). A" }, { "docid": "1886465", "title": "", "text": "... freely inform the government of their wishes.” Id. at 137, 81 S.Ct. 523; see also id. at 138, 81 S.Ct. 523. Noting that such expressions also provide the government with valuable sources of information in a democratic society, the Supreme Court held as a matter of statutory interpretation that petitioning activity of this kind is generally immune from suit under the Sherman Act. See id; see also Pennington, 381 U.S. at 670, 85 S.Ct. 1585 (“Noerr shields from the Sherman Act a concerted effort to influence public officials regardless of intent or purpose.”). However, the Supreme Court also carved out a limited exception to this rule for so-called “sham” petitioning. See id. at 144, 81 S.Ct. 523. It concluded that “application of the Sherman Act would [still] be justified” if petitioning activity that is “ostensibly directed toward influencing governmental action, is a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor.... ” Id.; see also California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 515, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972) (“First Amendment rights may not be used as the means or the pretext for achieving ‘substantive evils’ ... which the legislature has the power to control.”). In California Motor Transport Co. v. Trucking Unlimited, 404 U.S. at 508, 92 S.Ct. 609, the Supreme Court clarified that the Noerr-Pennington doctrine extends to petitioning activity before “administrative agencies ... and ... courts.” Id. at 510-11, 92 S.Ct. 609. In this context, there is also a limited exception to Noerr-Penning-ton immunity for so-called “sham” litigation, which is litigation that meets the following two criteria: (i) “the lawsuit [is] objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits”; and (ii) the “baseless lawsuit conceals an attempt to interfere directly with the business relationships of a competitor through the use [of] the governmental process — as opposed to the outcome of that process — as an anti-competitive weapon.” Professional Real Estate Inv’s, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49," }, { "docid": "7577652", "title": "", "text": "to exit the United States market. III. A party who petitions the government for redress generally is immune from antitrust liability. Eastern R.R. Presidents Conference v. Noerr Motor Freight, 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961); United Mine Workers of Am. v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965) (“Noem-Pennington doctrine”). This immunity extends to persons who petition all types of government entities — legislatures, administrative agencies, and courts. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972) (“The right of access to the courts is indeed but one aspect of the right of petition.”). “[WJhere restraint upon trade or monopolization is the result of valid governmental action, as opposed to private action, no violation of the [Sherman] Act can be made out.” Noerr, 365 U.S. at 136, 81 S.Ct. 523 (citations omitted). Noerr-Pennington immunity does not apply, however, to petitions or lawsuits that are a “mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor.” Noerr, 365 U.S. at 144, 81 S.Ct. 523. Often, a petition to the government causes an anti-competitive effect, but “evidence of anticompetitive intent or purpose alone cannot transform otherwise legitimate activity into a sham.” Professional Real Estate Investors v. Columbia Pictures Indus., Inc., 508 U.S. 49, 57-58, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993) (“PRE”). In PRE, the Supreme Court held that litigation is a sham if the lawsuit is “objectively baseless.” But “[t]he existence of probable cause to institute legal proceedings precludes a finding that an antitrust defendant has engaged in sham litigation.” Id. at 62, 113 S.Ct. 1920. The Court then stated, “Probable cause to institute civil proceedings requires no more than a reasonable belief that there is a chance that a claim may be held valid upon adjudication .... the existence of probable cause is an absolute defense.” Id. at 62-63, 113 S.Ct. 1920 (internal quotation marks, brackets, and citations omitted). The Court concluded its discussion by' stating “a proper probable-cause determination irrefutably" }, { "docid": "3795634", "title": "", "text": "a single victim to inflict one injury simply does not threaten the type of continued criminal activity that is the focus of the RICO statute. The RICO claim must consequently be dismissed. C. Antitrust Claim In asserting his antitrust claim, apparently under the anti-monopoly provision of Section 2 of the Sherman Act, 15 U.S.C. § 2, Hoff-meyer focuses on the alleged anti-competitive intent behind and effect of the filing of Harris’ copyright infringement lawsuit. Since Hoffmeyer’s claim is based upon Harris’ litigation activity, it implicates the Noerr-Pen-nington doctrine of immunity for activities, including access to the courts, that are aspects of the first amendment right to petition the government for redress of grievances. See Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., — U.S. -, -, 113 S.Ct. 1920, 1926, 123 L.Ed.2d 611 (1993) discussing Eastern R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961) and United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965). Under the Noerr-Pennington doctrine, those that resort to the courts are generally immune from antitrust liability for any anti-competititve effects their litigation efforts might have. An exception to this principle exists if the antitrust defendant has engaged in “sham” litigation — litigation that is ostensibly directed at the legitimate goal of vindicating legal rights, but is actually a mere “sham” to cover an attempt to interfere directly with the business relationships of a competitor. See Professional Real Estate Investors, — U.S. at -, 113 S.Ct. at 1926. The Supreme Court has recently addressed the issue of what an antitrust plaintiff must show in order to demonstrate that a defendant has engaged in “sham” litigation and is therefore not entitled to Noerr-Pen-nington immunity. In Professional Real Estate Investors, — U.S. at -, 113 S.Ct. at 1928, the Court stated that, in order to qualify as a sham, a lawsuit must be “objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits.” Secondly, the baseless lawsuit must conceal an attempt to interfere directly with" }, { "docid": "13906704", "title": "", "text": "settlements. See Schering-Plough, 402 F.3d at 1072. The Direct Purchasers allege that Solvay engaged in sham litigation in filing and prosecuting the patent infringement actions against the generic Defendants. They allege that the generic Defendants conspired to restrain trade by entering into settlements of the sham litigation in exchange for a portion of Solvay’s monopoly profits. Solvay, Par and Paddock assert immunity under the Noerr-Pennington doctrine. The Noerr-Pennington doctrine provides that there is no antitrust liability for petitioning the government for an anti-competitive outcome. Andrx, 421 F.3d at 1235. It prevents federal antitrust laws from interfering with the First Amendment right to “petition the Government for a redress of grievances.” U.S. Const, amend. I; see also Professional Real Estate Investors v. Columbia Pictures In-dus., Inc., 508 U.S. 49, 56, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993). Courts have defined petitioning activity to include lobbying for government legislation and seeking redress through administrative or judicial proceedings. See Eastern R.R. Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127, 136, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961); United Mine Workers v. Pennington, 381 U.S. 657, 670, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965); California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972). It is well established that there is a sham litigation exception to Noerr-Pennington immunity. See Noerr, 365 U.S. at 144, 81 S.Ct. 523 (noting that there is no protection for petitioning activity that is “a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor”). In this context, the Eleventh Circuit has said that sham litigation has two elements: “(1) the lawsuit is objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits; and (2) the party bringing the allegedly baseless suit did so with a subjective motivation to interfere directly with the business relationships of a competitor.” Andrx, 421 F.3d at 1234 (internal quotation marks and emphasis omitted). The Direct Purchasers say that Solvay’s infringement actions were objectively baseless because generic" }, { "docid": "14178396", "title": "", "text": "not infringed for anti-competitive purposes to maintain a monopoly over the market for ticlopidine hydrochloride, Genpharm has stated a claim for patent misuse in violation of the Sherman Act, 15 U.S.C. § 2. See C.R. Bard, 157 F.3d at 1368; Glaver-bel, 45 F.3d at 1558. Roche and Syntex claim that Genp-harm’s fourth and fifth counterclaims are barred by the Noerr-Pennington doctrine which' immunizes good-faith litigants from antitrust liability. Our Supreme Court has advised that a party who petitions the government for redress is generally immune from antitrust liability. Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961); United Mine Workers of Am. v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965) (the “Noerr-Pennington doctrine”). In Noerr, the Court first recognized that the “mere solicitation of government action with respect to the passage and enforcement of laws” is immune from antitrust liability. 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464. The Court then extended this immunity to those who “use the channels and procedures of state and federal agencies and courts to advocate their causes and points of view respecting resolution of their business and economic interests vis-a-vis their competitors.” California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 611, 30 L.Ed.2d 642 (1972). However, both in Noerr and in California Motor Transport, the Court withheld the immunity from “sham” activities and litigation because where the litigation or the political activity “is a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor ... the application of the Sherman Act would be justified.” California Motor Transport, 404 U.S. at 510, 92 S.Ct. 609, 611, 30 L.Ed.2d 642 (quoting Noerr, 365 U.S., at 144, 81 S.Ct., at 533). Thus, sham litigation is actionable under federal antitrust law. In order for litigation to be considered a “sham,” it must be “objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits.” Professional Real Estate Investors, Inc. v." }, { "docid": "17069740", "title": "", "text": "Ltd. v. Ethyl Corp., 168 F.3d 119, 122 (3d Cir.), cert denied, 528 U.S. 871, 120 S.Ct. 173, 145 L.Ed.2d 146 (1999). Petitioning is immune from liability even if there is an improper purpose or motive. See E. R.R. Presidents Conference v. Noerr- Motor Freight, Inc., 365 U.S. 127, 138, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961) (holding that even if the petitioner’s sole purpose was to destroy its competition through passage of legislation, petitioner would be immune); Prof'l Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 56, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993) (same). Rooted in the First Amendment and fears about the threat of liability chilling political speech, the doctrine was first recognized in two Supreme Court cases holding federal antitrust laws inapplicable to private parties who attempted to influence government action — even where the petitioning had anticompetitive effects. See Noerr, 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464; United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965). Under the Noeir-Pennington doctrine, “mere attempts to influence the Legislative Branch for the passage of laws or the Executive Branch for their enforcement” are given immunity from the Sherman Act and other antitrust laws. Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972). The immunity reaches not only to petitioning the legislative and executive branches of government, but “the right to petition extends to all departments of the Government,” including the judiciary. Id. Noerr-Pennington immunity applies to actions which might otherwise violate the Sherman Act because “[t]he federal anti trust laws do not regulate the conduct of private individuals in seeking anticompeti-tive action from the government.” Omni 499 U.S. at 379-80, 111 S.Ct. 1344. The antitrust laws are designed for the business world and “are not at all appropriate for application in the political arena.” Noerr, 365 U.S. at 141, 81 S.Ct. 523. This was evident in Noerr, where defendant railroads campaigned for legislation intended to ruin the trucking industry. Even though defendants employed deceptive and unethical means," }, { "docid": "22533203", "title": "", "text": "in bad faith, vexatiously, wantonly, or for oppressive reasons'.... Something less than 'bad faith,' we believe, suffices to mark a case as 'exceptional' \"). ICON argues that the dual requirement of \"subjective bad faith\" and \"objective baselessness\" follows from this Court's decision in Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993) (PRE ), which involved an exception to the Noerr-Pennington doctrine of antitrust law. It does not. Under the Noerr-Pennington doctrine-established by Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961), and United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965)-defendants are immune from antitrust liability for engaging in conduct (including litigation) aimed at influencing decisionmaking by the government. PRE, 508 U.S., at 56, 113 S.Ct. 1920. But under a \"sham exception\" to this doctrine, \"activity 'ostensibly directed toward influencing governmental action' does not qualify for Noerr immunity if it 'is a mere sham to cover ... an attempt to interfere directly with the business relationships of a competitor.' \" Id., at 51, 113 S.Ct. 1920. In PRE, we held that to qualify as a \"sham,\" a \"lawsuit must be objectively baseless\" and must \"concea[l] 'an attempt to interfere directly with the business relationships of a competitor....' \" Id., at 60-61, 113 S.Ct. 1920 (emphasis deleted). In other words, the plaintiff must have brought baseless claims in an attempt to thwart competition ( i.e., in bad faith). In Brooks Furniture, the Federal Circuit imported the PRE standard into § 285. See 393 F.3d, at 1381. But the PRE standard finds no roots in the text of § 285, and it makes little sense in the context of determining whether a case is so \"exceptional\" as to justify an award of attorney's fees in patent litigation. We crafted the Noerr-Pennington doctrine-and carved out only a narrow exception for \"sham\" litigation-to avoid chilling the exercise of the First Amendment right to petition the government for the redress of grievances. See PRE, 508 U.S., at" }, { "docid": "13421574", "title": "", "text": "context, we turn to these cases. The Noerr-Pennington doctrine holds that the right to petition the government for redress is generally immune from antitrust liability unless the petitioning activity is a “sham.” See United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965); E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 144, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961). “Baseless litigation is not immunized by the First Amendment right to petition.” Bill Johnson’s, 461 U.S. at 743, 103 S.Ct. 2161. But determining what litigation is “sham” or “baseless” requires the drawing of a “difficult line” to separate objectively reasonable claims from a “pattern of baseless, repetitive claims ... which leads the fact-finder to conclude that the administrative and judicial processes have been abused.” Cal. Motor Transp., 404 U.S. at 513, 92 S.Ct. 609. In Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, the Supreme Court held that “an objectively reasonable effort to litigate cannot be sham regardless of subjective intent.” 508 U.S. 49, 57, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993). The Supreme Court enunciated a two-part test for sham litigation: (1) “the lawsuit must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits,” and (2) “only if the challenged litigation is objectively merit-less may a court examine the litigant’s subjective motivation” to determine “whether the baseless lawsuit conceals ‘an attempt to interfere directly with the business relationships of a competitor,’ through the ‘use [of] the governmental process as opposed to the outcome.’ ” Id. at 60-61, 113 S.Ct. 1920 (emphasis in original) (citations omitted). The plaintiff bears the burden to disprove the challenged lawsuit’s legal viability before subjective intent can be considered. Id. This test looks at objective merit at the outset, not whether the claim ultimately prevailed. Id. at 61 n. 5,113 S.Ct. 1920. The Supreme Court has drawn the contours of the First Amendment petition right somewhat differently in the labor law context. In Bill Johnson’s, the case on which the district court’s July 2007 denial of summary judgment" }, { "docid": "17973507", "title": "", "text": "section 2 claim and resultant antitrust injury arises out of an alleged agreement between PG & E and DESTEC not to supply power to the Praxair substation. See FAC at ¶¶ 36-43 & 45-6. Finally, in an important concession, MID maintains that because the Noerr-Pennington doctrine does not apply it need not plead facts to establish that defendants’ conduct falls within the “sham exception” to the Noerr-Pennington doctrine. Cf. California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 511, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972) (no Noerr immunity if petitioning activity is “mere sham to cover ... an attempt to interfere directly with the business relationships of a competitor”); Columbia Pictures Industries, Inc. v. Professional Real Estate Investors, Inc., 944 F.2d 1525, 1529 (9th Cir.1991) (“the filing of a lawsuit is immune from the antitrust laws unless the suit is a sham”), aff'd, 508 U.S. 49, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993). Under the Noerr-Pennington doctrine, one who files a lawsuit or otherwise petitions the government for redress is generally immune from antitrust liability unless such litigation or activity is a sham. Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49, 56, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993); Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961); United Mine Workers v. Pennington, 381 U.S. 657, 669-70, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965). In California Motor-Transp., the Supreme Court adapted the Noerr doctrine to the judicial process in addressing the contention of the respondent out-of-state highway carriers that a group of in-state highway carriers conspired to monopolize the transportation of goods in California by instituting state and federal proceedings to resist and defeat applications by respondents to acquire operating rights within California. Id. at 509, 92 S.Ct. 609. In rejecting antitrust liability, the Court concluded that “it would be destructive ... to hold that groups with common interests may not, without violating the antitrust laws, use the channels and procedures of state and federal agencies and courts to advocate their causes and" }, { "docid": "12014314", "title": "", "text": "154(a)(l)-(2). Abbott’s initial patent-based monopoly in the terazosin hydrochloride market is not at issue. Rather, Kaiser contends that Abbott improperly tried to extend its patent monopoly by filing sham lawsuits in order to delay the entry of generic competition, and by fraudulently obtaining an invalid patent for the same purpose. Even though Kaiser must ultimately prove the existence of a “sham” by clear and convincing evidence, it need only show that there is a genuine issue of material fact to avoid summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). This determination is made “through the prism” of the clear and convincing evidentiary standard. Id. at 254-55, 106 S.Ct. 2505. There is no antitrust exception to the standard set forth in Federal Rule of Civil Procedure 56. 1. Noerr-Pennington Framework The Noerr-Pennington doctrine allows private citizens to exercise their First Amendment rights to petition the government without fear of antitrust liability. See Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961) (“Noerr”); United Mine Workers of Am. v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965) (“Pennington ”). The Supreme Court has explained, “In light of the government’s ‘power to act in [its] representative capacity’ and ‘to take actions ... that operate to restrain trade,’ we reasoned that the Sherman Act does not punish ‘political activity’ through which ‘the people ... freely inform the government of their wishes.’ ” Prof'l Real Estate Investors, Inc. v. Columbia Pictures Indus., 508 U.S. 49, 56, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993) (all alterations in original) (quoting Noerr, 365 U.S. at 137, 81 S.Ct. 523). Noerr-Pennington originally immunized only petitions to legislative officials, but the Supreme Court extended Noerr-Pennington immunity to petitions to administrative agencies and courts. Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972). An entity loses Noerr-Pennington immunity from anti-trust liability if its conduct falls within the “sham” exception to the doctrine. That is, “[t]here may be situations" }, { "docid": "6156984", "title": "", "text": "immunity bárs the Counterclaim. B. Torrent Alleges Sufficient Facts to Plausibly Overcome Otsuka’s Noerr-Pennington Immunity Under- the Noerr-Pennington doctrine, a patent owner’s initiation of pat ent infringement litigation receives presumptive immunity from attack under the antitrust laws. See generally Eastern R.R. Presidents Conference v. Noerr Motor Freight, 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961); United Mine Workers of Am. v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965); see also Rochester Drug Co-op., Inc., 712 F.Supp.2d at 316 (considering Noerr-Pennington immunity in the patent infringement context). Parties who file “sham litigation” are, however, excepted from the benefit of immunity under Noerr-Pennington. Prof'l Real Estate Investors v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60-61, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993). An allegation of sham litigation consists of two elements: first, “the lawsuit must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits.” Id. (internal quotations and citations omitted). Second, “the baseless lawsuit [must] conceal[ ] an attempt to interfere directly with the business relationships of a competitor,” rather than reflect a legitimate effort to obtain judicial review. Id. In seeking the dismissal of Torrent’s antitrust Counterclaim, Otsuka argues that Torrent pleads little more than “bare labels and legal conclusions,” by. claiming that Otsuka initiated “objectively baseless and sham judicial proceedings,” “baselessly and improperly 'wielded the '615 and '796 Patents,” and that the pending litigation qualifies as “both objective and subjectively baseless.” (Otsuka’s Br. at 8-10 (citation omitted).) Those allegations, standing alone, do indeed constitute con-clusory allegations of the type routinely found insufficient to overcome Noerr-Pen-nington immunity under the; federal pleading standards. Nevertheless, Torrent’s Counterclaim includes more detailed factual matter.' Indeed, in addition to the allegations cited by Otsuka, Torrent specifically • alleges that it provided a “detailed statement of the factual and legal -bases” for its position on the non-infringement of Torrent’s ANDA, and that it- subsequently provided the confirming-“portions” of Torrent’s ANDA. (Countercl, at 15-16.) Torrent therefore alleges that the infringement claims asserted by Otsuka in this litigation lack an objectively reasonable basis, because" } ]